BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 8th day September 2017
Filed on : 07-03-2012
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.133/2012
Between
1. Vinod C. John, : Complainant
S/o. M.C. John, (By Adv. R. Padmaraj)
Muttasseril house, Kodiyadi P.O.,
Thiruvalla,
Pathanamthitta-689 110.
2. Leelamma Isaac,
W/o. M.C.John,
Muttasseril house,
Kodiyadi P.O., Thiruvalla,
Pathanamthitta-689 110.
And
M/s. Puravankara Projects Ltd., : Opposite party
G-261, Panampilli Avenue, (O.P. By Adv. George G. Pai
Kochi-682 036, J. Hudson Samuel & Parties,
rep. by its Managing Director. 7th Floor, Near Passport Officer,
Perumpilly Road, Ernakulam-
682 031)
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant entered into a sale agreement on 17-10-2007 with the opposite party for purchase of a 3 bed room apartment along with undivided share of the property in the residential complex known as ' Purva Eternity'. The complainants have strictly complied with their part of the contract by making the payment as per the time schedule shown in the construction agreement. The opposite party was supposed to deliver the apartment after construction on or before 31-12-2009 with a grace period of 6 months time. However, the opposite party did not deliver the apartment as agreed. The complainants are entitled compensation of Rs. 7,000/- per month from 1st January 2010 for every month of delay in delivery. The opposite party had collected Rs. 2,59,591/- towards KVAT from the complainants and misappropriated the same by not transferring the same to the sales tax authorities. Therefore the complainant is entitled to get refund of the said amount. Even though the complainant is not liable to pay service tax, the opposite party is demanding Rs. 81,586/- towards alleged service tax due. The opposite party is entitled to claim interest at the rate of 24% p.a. The complainant seeks a direction from the opposite parties to to pay a sum of Rs. 1,75,000/- being the amount payable by the opposite parties to the complainant for the delay in delivery of the apartment calculated from January 2010 with interest @ 24% p.a. from the date of complaint till the date of payment. The complaint also seeks a direction to refund Rs. 2,59,591/- towards the amount collected as KVAT. Complainant also seeks an order declaring that the opposite parties are not entitled to collect service tax from the complainant on the construction agreement dated 17-10-2007 executed between them.
3. Notices were issued to the opposite parties, who appeared and conducted the claim contending inter-alia as follows:
4. The complainants have defaulted the payment of their dues towards the equated monthly instalments to the opposite parties. The complainant therefore can not claim the benefit of the agreement. The complainant chose apartment No. 1103 EE and a construction agreement was executed on 17-10-2007 agreeing for a total payment Rs. 34,49,500/ towards the price. The complainant was bound to pay service tax at Rs. 81,586/- . The delay in the construction was due to the Global recession, strikes and Hartals of skilled labourer's, ban imposed by the State Government of sands and mining and cost the escalation of construction materials. The opposite party did not do any willful acts in getting the construction delay. There is no deficiency in service on the part of the opposite parties. The complaint is liable to be dismissed.
5. The evidence in this case consists of the oral evidence of PW1 and Exbs. A1 to A9 on the side of the complainant and the oral evidence of DW1 and Exbts. B1 to B8 on the side of the opposite parties. Heard both sides.
6. The following issues were settled for consideration
i. Whether the complainants have proved that the opposite parties had committed deficiency in service?
ii. Reliefs and costs
7. Issue No. i. The main contention of the complainant is that the opposite parties did not deliver the apartment despite regular and and without fault in payment of monthly instalments by the complainants. The complainants did not produce any evidence to show that the complainant had made the payments perfectly within time as per the schedule of payment mutually agreed upon. Therefore the complainants have not proved that they have done their part of the contract. The complainants were kept informed by way of letters and mails regarding the stage of construction.
8. The complainant have claimed the payment of a sum of Rs. 1,75,000/- from the opposite parties for the delay in delivery of the apartment from January 2010 till the date of filing the complaint along with interest @ 24% p.a. from the date of complaint till payment. As per the agreement the payment of interest is not contemplated. Therefore the complainants are estopped from contending to the contrary. The amount of Rs. 2,69,591/- collected towards payment of KVAT has been remitted by the concerned statutory authority. Therefore the question of payment of the same to the complainant with interest does not arise. The documents produced by the complainants as Exbts. A1 to A9 did not help the complainants to prove this case. The complainant was replied by the opposite party to the Advocate notice issued to him denying the liability of the opposite party to pay the claimed amount interest and costs of the proceedings. Exbt. A8 is a declaration-cum-undertaking in para 5 of Exbt. A5. The 2nd complainant Smt. Leelamma Isaac has specifically agreed that the complainants agree to keep the developer fully discharged from any claims demands etc. which they may have against the developer on any ground whatsoever including any claims/demands made by them and which is pending before any Court, Tribunal or Forum. In the light of the above agreement executed by the 2nd complainant with the opposite party we find that the complainants have no continuing cause of action. The issue is therefore found against the complainants.
9. Issue No. ii. Having found issue number 1 against the complainants we find that the complaint is liable to be dismissed and accordingly dismissed.
Pronounced in the open Forum on this the 8th day September 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant's Exhibits:
Exbt. A1 : Copy of agreement dt. 17-10-2007
A2 : True copy of agreement .
A3 : Copy of reply notice
dt. 30-06-2011
A4 : Copy of unsigned lawyer notice
dt. 13-12-2011
A5 : Copy of unsigned lawyer notice
dt. 28-01-2012
A6 : Copy of g-mail dt. 01-12-2007
A7
Series : True copy of statement from
31-12-2008 to 31-12-2008
A7(a) : True copy of account statement
from 01-01-2009 to 30-06-2009
A7(b) : “ dt. 01-07-2009 to 31-12-2009
A8 : Copy of declaration
-cum-undertaking
A9 : Statement dt. 02-07-2014
Opposite party's Exhibits :
Exbt. B1 : Copy of application for allotment
of apartment
B2 : Copy of letter dt. 02-07-2014
B3 : Copy of letter
dt. 09th September 2014
B4 : Copy of letter dt. 30-09-2014
B5 : Copy of sale deed dt. 15-10-2014
B6 : Copy of e-mail
B7 : Copy of letter
B8 : Copy of letter dt. 18-03-2011
Deposition:
DW1 : Dileep
Copy of order despatched on: By Post : By Hand:
