BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Date of filing : 14/12/2009
Date of Order : 27/08/2011
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 652/2009
Between
Dr. Alex. P. Lukose, | :: | Complainant |
S/o. Alexander, Thukalan's Enclave, Near Pipe Line Jn., Edappally Pookkattupady Road, Thrikkakara. P.O. - 682 021. |
| (By Adv. George Cheiran, Karippaparambil Associates Advocates, H.B. 48, Panampilly Nagar, Cochin - 36) |
And
1. M/s. Needom Constructions Pvt. Ltd., | :: | Opposite parties |
O/o. M/s. Fern Valley Resorts Pvt. Ltd., Main Avenue, No. 9-358, Panampilly Nagar, Kochi – 682 036, Rep. by Managing Director, Paul Fernandez. 2. M/s. Fern Valley Resorts Pvt. Ltd., Main Avenue, No. 9-358, Panampilly Nagar, Kochi – 682 036, Rep. by Managing Director, Paul Fernandez. 3. Paul Fernandez, Managing Director, M/s. Fern Valley Resorts Pvt. Ltd., Main Avenue, No. 9-358, Panampilly Nagar, Kochi – 682 036. 4. Dr. Vasantha Fernandez, Executive Director, M/s. Fern Valley Resorts Pvt. Ltd., Main Avenue, No. 9-358, Panampilly Nagar, Kochi – 682 036. |
| (Op.pts. by Adv. A.P. Subhash & Associate, Advocate & Notary, K/246/90, Room No. 6 AB, Jewel Arcade, Layam Road, Kochi - 11) |
O R D E R
A. Rajesh, President.
1. The facts of the complainant's case are as follows :
On 03-12-1995, the complainant had paid the full consideration of Rs. 8,25,000/- to the opposite parties for a type B flat in Poonithura Village. Since the opposite parties failed to deliver the flat in time, the complainant had filed O.P. No. 147/2000 against the 1st opposite party before the Consumer Disputes Redressal Commission, Thiruvananthapuram praying for refund of the amount and auxiliary reliefs. During the pendency of the said case, the management of the 1st opposite party had been taken over by the opposite parties 2 to 4. In the meantime, the opposite parties demanded a sum of Rs. 60,000/-, the complainant paid the amount under protest. Again the opposite parties demanded a sum of Rs. 1,67,125/-, though the complainant had remitted the full price in 1995. At that juncture, the opposite parties promised to buy back the flat for Rs. 33 lakhs to which the complainant agreed as well. Accordingly, the opposite parties paid Rs. 10 lakhs and promised to pay the balance amount on or before 16-03-2008. Though they paid Rs. 7.5 lakhs on 07-05-2008, Rs. 1 lakh on 10-12-2008 and Rs. 3 lakhs on 06-09-2009 respectively. An amount of Rs. 11.5 lakhs is still outstanding from the opposite parties. The complainant is entitled to get the amount will 18% interest from the opposite parties together with Rs. 25,000/- as costs of the proceedings. Hence this complaint.
2. Version of the opposite parties :
The complainant is not a consumer and this Forum has no jurisdiction to entertain this complaint. In the light of pendency of O.P. No. 147/2000 before the State Commission, the present complaint is barred by res-judicata. The 1st opposite party went in liquidation and the Company Court has already passed winding up order and the official liquidator has already taken over the assets of the company. Subsequently, the 3rd opposite party has revived the company. An amount of Rs. 1,67,000/- demanded by the opposite parties was the additional amount for up-gradation of the work. The opposite parties agreed to buy-back the flat for Rs. 33 lakhs. Out of the amount, the following amounts were paid to the complainant :
01-02-2008 - Rs. 10,00,000/-
08-05-2008 - Rs. 7,50,000/-
11-12-2008 - Rs. 1,00,000/-
25-09-2009 - Rs. 3,00,000/-
Thus, the complainant is entitled to get only the balance amount of Rs. 9,82,875/-. The opposite parties request to dismiss the complaint.
3. The complainant was examined as PW1. Exts. A1 to A11 were marked. No oral evidence was adduced by the opposite parties. Exts. B1 to B4 were marked on their side. Heard the counsel for the parties.
4. The points that arose for consideration are :-
Whether the complainant is a consumer?
Whether the complaint is maintainable in this Forum?
Whether this complaint is barred by res-judicata?
Whether the complainant is entitled to get Rs. 11.5 lakhs from the opposite parties?
Costs of the proceedings?
5. Point Nos. i. and ii. :- Section 2 (1) (o) 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 Singh (II (2004) CPJ 12 (SC), in a considered view has categorically sustained the contention that this is a case maintainable in this Forum. The first point being answered to the contrary the second point as well fails, since they pertain to the same issue.
6. Point No. iii. :- Admittedly, no order on merits had been passed by the Hon'ble Kerala State Consumer Disputes Redressal Commission in O.P. No. 147/2000 which had been filed by the complainant. So, we have no hesitation to hold that the contention of the opposite parties that this complaint is barred by res-judicata is unsustainable in law. Held so.
7. Point No. iv. :- The undisputed facts in this case are as follows :
The opposite parties offered to buy-back the flat at a price of Rs. 33 lakhs to which the complainant agreed.
Out of the above amount, the opposite parties paid the following amounts to the complainant.
Serial No. | Date | Amount in Rs. |
1.
| 01-02-2008 | 10,00,000 |
2.
| 08-05-2008 | 7,50,000 |
3.
| 11-12-2009 | 1,00,000 |
4.
| 25-09-2009 | 3,00,000 |
| Total | 21,50,000 |
8. According to the complainant, he is entitled to get the balance amount of Rs. 11.5 lakhs from the opposite parties. On the contrary, the opposite parties maintain that they are entitled to retain a sum of Rs. 1,67,000/- being the amount outstanding prior to the agreement for buying back the flat.
9. The opposite parties had demanded the outstanding amount from the complainant even prior to the buy-back agreement evident from Ext. B4. The complainant agreed to remit the balance, if any vide Ext. B3 letter dated 05-01-2008. Therefore, the opposite parties are legally entitled to retain Rs. 1,67,000/-. However, no reason is forthcoming on the part of the opposite parties in retaining the balance amount other than Rs. 1,67,000/-. The opposite parties are legally bound to pay the balance amount of Rs. 9,83,000/- (Rs. 11,50,000/- - Rs. 1,67,000/-) with interest at the rate of 12% p.a. from the date of payment agreed by the opposite parties in Ext. B1 letter dated 16-03-2008.
10. Point No. v. :- Since the primary grievance of the complainant has been met squarely, no order for costs of the proceedings is called for.
11. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay to the complainant Rs. 9,83,000/- (Rupees Nine lakhs and eighty three thousand only) together with interest @ 12% p.a. from 16-03-2008 till realisation.
The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in open Forum on this the 27th day of August 2011.
