BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 251/2002 Filed on 20.06.2002

Dated : 30.06.2009

Complainant:

Dr. Gopi Mohan Naresh, Vidya, Adiyat Lane, Poonthali, Thrissur, now residing at 'Charutha' No. 30/1146, Devagiri, Kozhikode-8.

(By adv. S.S. Kalkura)

Opposite parties:

1. M/s Innu Apartments, Kuravankonam, Thiruvananthapuram represented by its Managing Director.

    

2. M.A. Nazarulla, Managing Director, M/s Innu Apartments, Kuravankonam, Thiruvananthapuram-3.

(By adv. M.M. Husain)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 08.05.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Facts of the case are as follows: Complainant in this case is Dr. Gopi Mohan Naresh and the opposite parties are M/s Innu Apartments and its Managing Director. The complainant who was desirous of owning a flat at Thiruvananthapuram, enchanted, attracted and lured by the wide publicity made by the opposite parties approached the opposite parties for owning one of the flats to be constructed in the property having an extent of 59.734 cents comprised in Sy. No. 3077/7/7 of Kowdiar Village, Trivandrum Taluk and Trivandrum District. During the discussion with the opposite parties it was informed to the complainant by the opposite party that their single bed room flats were over booked and only if the amount is paid (Rs. 25,000) they can consider the request of the complainant, who in turn had informed them that he has to raise funds by obtaining loan and therefore the finalisation of the purchase can be made only subject to the approval by the financiers of the complainant which the opposite party had readily accepted and assured the complainant that the agreement of sale between the complainant and the opposite parties, be executed only after the complainant obtained sanction from his financiers, viz, the LIC HFL, however directed the complainant to deposit Rs. 25,000/- as initial deposit. They had also undertook that in the event of non-sanctioning of the said loan, the deposit amount of Rs. 25,000/- shall be returned to the complainant without any delay, demur or default. The complainant believing the representations made by the opposite party had deposited Rs. 25,000/- on 02.03.2000 with the opposite party. Later the LIC Housing Finance Ltd. informed the complainant that the loan could not be granted. The complainant immediately on receipt of the said information communicated the same to the opposite party. This was done just before the complainant was transferred to Trissur. The complainant requested the opposite party to refund the amount of Rs. 25,000/- already deposited by him on 02.03.2000. The opposite party accepted the notice sent by the complainant but did not turn up to refund the amount. Again complainant sent a lawyer's notice on 08.03.2001 to which the opposite party replied false and frivolous contention. As per the complainant the act of the opposite parties tantamount to unfair trade practice and deficiency in their service. Hence this complaint.

Opposite parties filed version contending the case of the complainant. The opposite party admitted that the complainant advanced Rs. 25,000/- for purchasing the flat. There is no relation or agreement in connection with the sanctioning of the loan by LIC Housing Finance Ltd. to the complainant. It was agreed by the complainant at the time of advancing the initial amount that if the complainant failed to purchase the flat, the complainant has no right to claim the advance amount. Here the complainant acted against the terms of the draft agreement and purposefully denying the purchase of the flat. The opposite parties stated that in the first week of July 2002 the complainant informed the opposite parties that he would be transferred from Thiruvananthapuram to Thrissur. So the complainant has no need for a flat at Thiruvananthapuram. Thus the complainant violated the conditions of the agreement. Opposite parties already allotted flat No. S 3 for the complainant and made further modification and alterations to the flat as per the instruction of the complainant. As per the instruction of the complainant opposite party had remitted Rs. 7,500/- at KSEB Office for obtaining electric connection and remitted the corporation tax Rs. 770.50. The opposite parties stated that there is neither deficiency in service nor unfair trade practice on their part. Actually the complainant played an unfair trade practice and approached this Forum.

In this case the complainant and opposite parties have filed affidavits. Nobody has been examined. From the side of the complainant 11 documents were marked as Exts. P1 to P11 and from the opposite party's side 5 documents were marked as Exts. D1 to D5.

The points that would arise for consideration are:-

1. Whether there is deficiency in service and unfair trade practice from the side of opposite parties?

2. Reliefs and costs.

    

Points (i) & (ii):- To prove the contentions of the complainant, he has produced 11 documents to support the case. The document marked as Ext. P1 is the letter issued by the opposite party informing the complainant that the flat is ready for occupation and to remit the balance amount without any further delay and get the sale deed executed in favour of the complainant. The date of letter is seen as 20.11.2000. Ext. P2 is the copy of letter dated 20.12.2000 by the opposite party to the complainant. The contents of the letter is that the flat is ready for delivery and the opposite parties have made all the modifications according to the suggestions of the complainant and they have already remitted Rs. 7,750/- for electric connection etc. The opposite parties also informed the complainant to remit the balance sales consideration. Ext. P3 is the copy of letter issued by the complainant to the opposite party and its postal receipt dated 05.01.2001, demanding the refund of the advance amount. Ext. P4 is the copy of reply letter to the letter dated 03.01.2001. In that letter the opposite party stated that since they have incurred expenses for the modification and electric connection, they are not in a position to pay back the amount. Ext. P5 is the copy of advocate notice issued by the complainant to the opposite party dated 08.08.2001. Ext. P6 is the reply notice of advocate notice. Ext. P7 is the copy of letter issued by the complainant to the opposite party on 30.11.2001 intimating the matter that the finance company has not given the loan. Ext. P8 is the letter issued by the opposite party to the complainant dated 20.12.2001. Ext. P10 is the report of the legal advisor of the bank regarding the validity of documents of the flat. Ext. P11 is the agreement between the opposite party and the complainant. As per this document both parties are bound to bind the conditions. In this case it is the complainant who violated the terms and conditions of the contract. The complainant stated that the finalisation of the purchase can be made only subject to the approval by the financiers of the complainant which the opposite party had accepted and assured the complainant that the agreement of sale between the complainant and opposite party be executed only after the complainant obtained sanction from the financiers. But there was no conditional agreement between the complainant and opposite party regarding the purchase of the flat on the basis of the availability of loan to the complainant. Complainant has no evidence to prove that contention.

The documents produced by the opposite parties were marked as Exts. D1 to D5. Ext. D1 is the copy of letter issued by the complainant to the opposite party on 30.11.2000 stating that some clarification regarding the flat has to be submitted before the financiers and therefore the complainant requested the opposite party to give the details of flat. Ext. D2 is the copy of receipt issued by the KSEB to the opposite party for the payment of Rs. 5,000/-. Ext. D3 and D4 are the receipts of KSEB for the payment of Rs. 1,000/- and Rs. 1,500/-. Ext. D5 is the copy of notice issued by the Corporation Office, Thiruvananthapuram.

We perused the documents submitted by the complainant and opposite parties carefully. In this case the complainant argued that he advanced the flat on the basis of the availability of the loan. But there was no such agreement between the parties. As per Ext. P1 document the opposite party informed the complainant that the flat is ready for delivery and the opposite party made all the alternations as required by the complainant. The date of the said letter is 20.11.2000. The complainant sent the reply letter on 30.11.2000 . Even on that letter complainant did not inform the opposite party that he do not want the flat and even in that letter also he demanded suggestion for electric facility etc.

From all the pleadings and evidences we are of the opinion that there was no unfair trade practice or deficient service from the side of opposite party. The complainant advanced Rs. 25,000/- for purchasing the flat. As per the agreement opposite party completed the flat within time and informed the complainant to take possession of the same after remitting the balance amount. But the complainant violated the terms and conditions of the agreement and demanded the repayment of the advance amount. The facts of the case stands as such the opposite party is ready and willing to pay Rs. 17,730/- to the complainant, the balance amount from the advance amount, the opposite party has spent an amount of Rs. 8270.80 in favour of the complainant. Even if the facts stand as such the opposite parties could have repaid the amount after deducting the amount incurred for the complainant when the complainant demanded repayment. But the opposite party was not ready to pay at that time. Hence on that point there is deficiency in service on the side of the opposite party. For that reason the complainant has been forced to file this complaint before this Forum. Hence the complainant is entitled to get the costs of the proceedings.

In the result, the complaint is partly allowed. Opposite parties are directed to pay Rs. 17,730/- with 9% annual interest from 03.01.2001, i.e; the date of notice issued by the complainant for the repayment till the date of realisation of the amount and also shall pay Rs. 1,500/- as costs of the proceedings to the complainant. Time for compliance one month from the date of receipt of this order. Thereafter 12% annual interest shall also pay to the above said amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 251/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 20.11.2000 issued to the complainant

by the opposite party.

P2 - Copy of letter dated 20.12.2000 issued to the complainant

by the opposite party.

P3 - Copy of reply letter dated 03.01.2001 issued by the

complainant to the opposite party with postal receipt.

P4 - Copy of reply letter dated 20.01.2001 issued by the

opposite party to the complainant.

P5 - Copy of advocate notice dated 08.08.2001

P6 - Copy of reply letter to advocate notice dated 23.08.2001.

P7 - Letter dated 30.11.2001 issued by the complainant to the

opposite party.

P8 - Letter dated 20.12.2000 issued by the opposite party to the

complainant.

P9 - Letter dated 20.01.2001 issued by the opposite party to the

complainant.

P10 - Report submitted by P. Ramachandran Nair, Advocate

dated 03.06.2000.

P11 - Agreement entered between complainant and opposite

party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of letter dated 30.11.2000 issued by the complainant to the opposite party.

D2 - Copy of receipt for Rs. 5000/- issued by KSEB dated 28.12.2000.

D3 - Copy of receipt for Rs. 1000/- issued by KSEB

D4 - Copy of receipt for Rs. 1500/- issued by KSEB

D5 - Copy of notice issued by Corporation Office, Tvpm.

PRESIDENT