BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 09/03/2009

Date of Order : 29/10/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 139/2009

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant had entered into two agreements dated 01-03-2007 with the opposite parties for purchase of undivided share and another for works contract. Both the agreements were prepared by the opposite parties only to protect and safeguard their interest. The complainant has paid the amount as per the agreement totalling to Rs. 37,77,970/-. As per the agreement, the opposite parties were to complete the construction by 31-05-2008. Accordingly, the opposite parties, executed a sale deed dated 19-03-2007 regarding sale of the apartment. The complainant was staying in a rented flat by believing the assurances of the opposite parties, he intimated his land lord that he would vacate the flat by 31-07-2008. The opposite parties handed over the key of the apartment and obtained a written acknowledgment of taking possession from the complainant, eventhough the electricity and water connection was not obtained. They offered to provide the facilities by 15-08-2008. So, the complainant surrendered the rented flat on 17-08-2008. At this juncture, the opposite parties arranged a flat to the complainant by paying Rs. 7,000/- per month with Rs. 800/- for incidental charges. The complainant caused a lawyer notice to the opposite parties to pay damages, but there was no response. Thus, the complainant is before us seeking the following directions against the opposite parties :

1. To compensate the complainant a monthly amount of Rs. 10,307/- from 31-07-2008 till the date of completion of the flat.

2. To compensate the complainant a monthly amount of Rs. 10,000/- for the inconveniences suffered by the complainant from 31-07-2008 till the flat is made habitable by the opposite parties.

3. To compensate the complainant an amount of Rs. 8,000/- being the amount towards shifting charges.

4. To direct the opposite parties to complete the work of the flat.

5. To pay the costs of the proceedings.

2. Version of the opposite parties :

The agreement consisted of a grace period of 16 weeks to complete the construction. The opposite parties had never given assurance that the flat would be fully operational by 31-07-2008. It was only upon the request of the complainant that the opposite parties introduced another flat owner to the complainant. The complainant is not entitled for any of the reliefs as prayed for.

3. The complainant was examined as PW1. Exts. A1 to A8 were marked on his side. The witness for the opposite parties was examined as DW1 and Exts. B1 to B5 were marked on their side. Heard the counsel for the parties.

4. The points that arose for consideration are :-

1. Whether the opposite parties are liable to pay compensation to the complainant as prayed for?

2. Costs of the proceedings?

5. Point No. i. :- The Chronological events in this case are as follows :

1. On 01-03-2007, the complainant entered into Ext. A1 agreement with the opposite parties for purchase of undivided share in the land and common amenities in 'Skyline' legacy apartment complex.

2. On the same day, the complainant entered into Ext. A2 agreement with the opposite parties for the construction of the apartment.

3. The complainant paid the entire amount as per the payment schedule in Ext. A2.

4. As per Ext. A2, the opposite parties undertook to complete the construction of the flat on or before 31-05-2008.

5. The complainant occupied the possession of the flat on 01-04-2009.

6. Ext. A2 dated 01-03-2007, is the agreement entered into between the complainant and the opposite parties for 2.51% of undivided interest in the property and for construction of apartment No. 1B having an area of 1768 sq.ft. and one covered car park. According to the complainant, at the time of entering into Ext. A2 agreement, he was having objection over clause 11 in it. However, he did not convey his objection to the opposite parties. Clause 11 in Ext. A2 reads as follows :

“That if owing to any willful act and/or default of the BUILDER, the possession of the Schedule 'B' property is not given to the CLIENT within 16 weeks from the commitment period as per these presents (Save delays due to reasons specified elsewhere in these presents), the CLIENT shall give intimation in writing to the BUILDER and from the date of receipt of such intimation by the BUILDER, the CLIENT shall become entitled to receive @ Rs. 21.50/- per sq.mtr. (i.e. Rs. 2/- per sq.ft.) per month for the area described in Schedule 'B' hereto as liquidated damages till the date of actual handing over of possession from the date of receipt of intimation by the BUILDER stipulated herein.”

7. The opposite party contended that they have handed over one set key of the flat to the complainant within the grace period from 31-05-2008 the date agreed for handing over the possession. But the opposite parties do not have a case that at the time of handing over the key that the premises was an inhabitable condition. So we cannot agree with the contention of the opposite party that, they have handed over the possession of the flat to the complainant in a habitable condition. Mere handing over the key to the complainant is not enough to satisfy the consumer in question as per Ext. A2 agreement. The right of the consumer has been wronged hence. It is pertinent to note that the complainant is staying in another flat, which was arranged by the opposite parties by paying a rent of Rs. 7,000/- per month on his own. The opposite parties failed to prove that the delay in completing the apartment and amenities even after accepting the full amount is not due to the reasons beyond their control as stated in Ext. A2. So the opposite parties are liable to compensate the complainant for the delay in handing over the possession on 30-05-2008, till 01-04-2009 handing over of the flat as per clause 11 of Ext. A2 ie. Rs. 2 per sq. ft. per month for 1768 sq.ft.

8. Point No. ii. :- The complainant in this case has had to suffer lot of inconveniences and mental agony due to the delay in handing over the possession of the flat to the complainant for no reasons of his not to mention the pecuniary losses. By the time, he had to shift his residence necessarily. Due to delay in handing over the possession of the flat necessarily, the complainant having had to shift to a rented apartment on costs of his own.

9. Apart from the costs, this Forum is more aware of a consumer's right and remedy. Compensation are called for hence. Costs necessarily allowed fixing them as Rs. 25,000/- and 5,000/- respectively.

10. In the result, we partly allow the complaint and direct as follows :

 

1. The opposite parties shall pay to the complainant Rs. 2/- per sq.ft. per month for 1768 sq.ft. from 30-05-2008 to 01-04-2009 as per clause 11 in Ext. A2.

2. The opposite parties shall also pay to the complainant a compensation of Rs. 25,000/- and Rs. 5,000/- towards costs of the proceedings.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amounts shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 29^th day of October 2011.

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 :-

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