PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012
Filed on :04/09/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 478/2010
Between
K.K. Kartha : Complainant
3/209, “Krishna Kripa”, (By Adv. P.Fazil, M/s. Lawyers
GCDA Road, United, Door No. 36/1912 A,
Thottakkattukara, Aluva, Sebastian road, Kaloor,
Ernakulam-683 108. Kochi-17.)
And
1. M/s. Star Homes, : Opposite parties
South Star Apartments, (By Adv. Lalgi P. Thomas,
Opposite KSRT Bus Stand, Paarathottu Chackalamannil
Ernakulam College P.O., Puthiya road, Chackalapadam
Kochi-682 035. Kaloor, Kochi-17)
2. Cochin Star Constructions,
South Star Apartments,
Opposite KSRT Bus Stand,
Ernakulam College P.O.,
Kochi-682 035.
rep. by its Partner Ajay V Group.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant and the 1st opposite party had entered into an agreement for sale dated 16-06-2003 with respect to 1/33 undivided share in the property having an extent of 12.694 cents with right to construct one Bed room flat bearing No. F in the 2nd floor in Block No. 26 in the Apartment Project namely Star Apartment Annex, with proportionate rights in the common area and common facilities. On the same day itself the complainant and the second opposite party had entered into an agreement for construction of the subject flat. The complainant had paid the entire sale consideration covered by the agreement for sale and the entire construction cost covered by the agreement for construction totaling to Rs. 3,01,500/-. As per the terms of the agreement for construction, the opposite parties had agreed to complete the construction on or before 30-4-2004 and to handover the possession of the flat, with the common areas and common facilities to the complainant within 45 days from thereof. But the completion and handing over the possession of the flat is being delayed inordinately and there is delay of nearly six years as of now. There is a clause in the agreement of construction stipulating payment of rental compensation at the rate of Rs. 2/- per square feet, in case the apartment is not handed over to the complainant by the opposite parties within the stipulated period. The opposite parties failed to do so. The first opposite party, by letter dated 05-04-2010 had forwarded a letter dated 15-02-2010 of the Managing Director of the 2nd opposite party seeking further time, without any justifiable reason. The opposite parties have not so far completed the construction of the apartment. The electric connection and water connection to the apartment complex are not yet commissioned. The said acts of the opposite parties amounts to deficiency in service and unfair trade practice. The opposite parties had paid Rs. 70,500/- to the complainant as rental compensation for the period from July 2004 to December 2008. From December 2008 till this date no amount was paid as rental compensation. An identical flat in the same location will fetch a rental value of at least Rs. 6,000/- per month and he is entitled to for the balance amount of Rs. 3,73,500/- from the opposite party. The complainant is seeking the following direction against the opposite party.
i. To complete the construction of the apartment in all respects and hand over possession of the same to the complainant within a time frame to be fixed by the Forum.
ii. To complete the registration formalities of the flat in the name of the complainant or his nominee.
iii. To pay an amount of Rs. 6,73,500/- compensation to the complainant for the delay in completing the construction and costs of the proceedings.
iv. to pay costs of the above complaint.
2. The version of the opposite parties is as follows:
There is no complaint by the complainant regarding the construction of the building or deficiency of service in respect of the construction. The complainant has no evidence to prove that the agreement is violated by the opposite party. The 1st opposite party being a well known reputed company their services are prompt and commitment. The construction was almost completed and the electricity connection is availed subject to the sanction of the Electricity Board concerned. The complainant deserves no compensation and the costs of the proceedings from the opposite parties.
3. The complainant and the 1st opposite party represented through counsel. The complainant was examined as PW1. Exts. A1 to A10 and C1 were marked. We have heard the counsel for the complainant.
4. The following points arise for consideration.
i. Whether the complainant is entitled to get possession of the
apartment in question from the opposite party or nor?
ii. Whether the complainant is entitled to get enhancement of
the rent from the opposite parties?
iii. Compensation and costs if any
5. Points Nos. i&ii. The complainant contented that he had paid the entire sale consideration and construction cost altogether Rs. 3,01,500/- towards the purchase price of apartment in project by name Star Apartment Annex but the opposite parties failed to complete the construction of the apartment and handing over the possession as mentioned in the Ext. A2 construction agreement. Ext. A1 and A2 agreements evidenced that the complainant had already paid the entire amount with regard to the construction of the apartment in question. As per Ext. A5 dated 28-10-2008 the 2nd opposite party assured that they are ready to hand over the possession and flat is already completed and waiting for the electricity and water connection. But till date the opposite parties could not fulfill their promises. In Ext. C1 report the commissioner reported that in totality the subject matter apartment is not in a habitable condition at present. Hence we are of the opinion that the opposite parties are liable to complete the construction work of the flat forthwith and handing over the same to the complainant.
According to the complainant the opposite parties failed to pay nominal rent of Rs. 1,375/- per month as per Ext. A2 from December 2008 onwards. And he further contended that an identical flat in the same location will fetch the rent at least Rs. 6,000/- per month and he is entitled to get the same. But there is no evidence before us to substantiate the same. The opposite parties did not dispute the non-payment of rent from the said period. Indisputably the complainant has had to suffer mental agony and other hardships as per the non compliance of Ext. A2 agreement. Admittedly Ext. A2 agreement was executed in 2003 at that point of time the rent was fixed at Rs. 1375/-. Now we are in 2012 no doubt the rental value has been increased than in the year 2003. Considering the entire circumstances in this case we are of the view that the complainant is entitled to get enhancement of the rent from December 2008 till the date of actual handing over the possession of the flat. We fix it at Rs. 5,000/- per month. We are not ordering any compensation, since we have already ordered enhancement of the rent. Nevertheless the complainant is entitled to get litigation costs from the opposite parties.
7. Accordingly, we partly allow the complaint as follows:
i. the opposite parties shall forthwith complete the construction
work of the flat in question in a habitable condition and deliver
the possession of the flat to the complainant immediately.
ii. The opposite parties shall jointly and severally pay to the
complainant Rs. 5,000/- as rent per month from December
2008 till actual delivery of the flat in dispute.
iii. The opposite parties shall jointly and severally pay Rs.
1,000/- by way of litigation costs to the complainant.
The above said 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 31st day of January 2012
Sd/-
C.K. Lekhamma, Member.
Sd/-
A Rajesh, President.
Sd/-
Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of agreement
dt. 16-06-2003
A2 : Copy of agreement
dt. 16-06-2003
A3 : Copy of letter dt. 28-04-2008
A4 : Copy of letter dt. 17-10-2008
A5 : Copy of letter dt.28-10-2008
A6 : Copy of letteer
dt. 12-02-2009
A7 : copy of letter dt. 05-04-2010
A8 : lawyer notice dt. 22-06-2010
A9 : Copy of postal receipt
A10 : Copy of A.D. card
Opposite party’s Exhibits : : Nil
Depositions:
PW1 : K.K. Kartha
Copy of order despatched on :
By Post: By Hand:
