BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/03/2012

Date of Order : 29/09/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 193/2012

Between

And

O R D E R

A. Rajesh, President.

1. The undisputed facts of the complainants' case are as follows :-

The complainants are husband and wife. On 20-08-2007, the complainants booked a two bed room apartment with the opposite parties in their project by name 'Star County'. On the same day, two agreements were executed. One is a sale agreement for the sale of the individual share of land and the other agreement for construction of two bed room apartment. The complainants paid advance sale consideration of Rs. 7 lakhs to the opposite parties. The balance payment was arranged as a bank loan from Syndicate Bank, Shanmugham Road Branch, Ernakulam. As per the agreement, the opposite parties agreed to complete the construction by September 2009, on which they failed. So, the bank refused to disburse the loan amount to the opposite parties. The opposite parties failed to complete the construction of the apartment in spite of repeated promises. Therefore, the complainants as per letter dated 27-01-2010 cancelled the booking and requested for refund of the advance amount. Due to the persistent requests of the complainants, the opposite parties issued 14 post dated cheques on 26-06-2011with different dates. The initial 3 cheques were dishonoured by the communication with the endorsement 'account closed'. So, the remaining 11 cheques were not presented with the bank. Subsequently, the opposite parties refunded Rs. 50,000/- to the complainants. On 21-06-2011and on 22-02-2011, the opposite parties have collected 14 cheques and issued another cheque dated 31-01-2012 for Rs. 8,40,323/- to the complainants. The cheque was presented for collection on 12-03-2012, but the same was dishonoured on 13-03-2012 with the endorsement 'funds insufficient' in the account. There is deficiency in service on the part of the opposite parties. The complainants had to suffer mental agony and inconveniences due to the conduct of the opposite parties, the complainants are entitled to get the balance amount of Rs. 6,50,000/- with interest at the rate of 12% pa. from 20-08-2007 till realisation together with a compensation of Rs. 5 lakhs and Rs. 10,000/- towards costs of the proceedings. This complaint hence.

2. Though the opposite parties appeared through counsel, they decided not to contest the matter for reasons of their own. The 1^st complainant was examined as PW1 and Exts. A1 to A8 were marked on the side of the complainants. Heard the learned counsel for the complainants.

3. The points that arose for consideration are as follows :-

1. Whether the complainants are entitled to get refund of the balance sale consideration from the opposite parties with interest?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

4. Point No. i. :- Admittedly, the complainants entered into Ext. A1 and Ext. A2 agreements with the opposite parties for construction of a 2 bed room apartment and for the undivided share in the property. Exts. A3 and A4 would show that a sum of Rs. 1,75,000/- and Rs. 5,25,000/- were received by the opposite parties on 23-08-2007 towards advance sale consideration. According to the complainants, the opposite parties failed to complete the construction of the apartment as per Ext. A2 agreement in September 2009. Accordingly, the 1^st complainant caused Ext. A6 letter to the opposite parties requesting to refund the amount paid by the complainants. Though the opposite parties issued Ext. A7 cheque to the tune of Rs. 8,40,323/- towards refund of the advance sale consideration with interest, the same was dishonoured by Ext. A8 memorandum issued by the bank. Admittedly by the time, the opposite parties refunded Rs. 50,000/- to the complainants. In short, a sum of Rs. 6,50,000/- is still outstanding from the opposite parties. No explanation is forthcoming on the part of the opposite parties for the dishonour of the cheque and non-refund of the amount to the complainants. The dishonour of Ext. A7 cheque speaks volumes. In that view of the matter, we have no hesitation to hold that the complainants are entitled to get refund of the balance amount of Rs. 6,50,000/- with interest @ 12% p.a. from the date of receipt till realisation.

5. Point No. ii. :- Since the primary grievance of the complainants having been met adequately, order for compensation and costs of the proceedings are let down.

6. In the result, the opposite parties shall jointly and severally refund Rs. 6,50,000/- with interest @ 12% p.a. from 23-08-2007 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 the open Forum on this the 29^th day of September 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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