KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C No. 44/2018
JUDGMENT DATED: 14.01.2019
PRESENT :
SRI. T.S.P. MOOSATH : JUDICIAL MEMBER
SRI. RANJIT. R : MEMBER
COMPLAINANT:
Joseph Velivil, Velivil House, TOG Road, Thrikkakara North, Pin-683 104.
(By Adv. Narayan. R)
Vs.
OPPOSITE PARTY:
Nucleus Premium Properties Pvt. Ltd., represented by its Managing Director Nishad N.P, Ventura, 3rd & 4th Floor, NH 47 Bypass, Cochin-682 024.
JUDGMENT
SRI. RANJIT. R: MEMBER
The case of the complainant is that on 03.07.2015 the complainant and opposite party, builder entered into a sale and construction agreement for purchase of apartment No. 1 C of the first floor of the Nucleus Eleganza which is being constructed in the property owned by the opposite party comprised in Re survey No. 285/6 and 285/7 of Vazhakkala village having an extent of 7.26 Ares. The apartment complex has common amenities such as health club, children’s play area, generator back-up etc. As per the aforesaid agreement opposite party agreed to sell 3.32% undivided share equivalent to 0.241 Are of land in the first floor of the apartment complex having 620 sq. ft with single bed room with right to use common amenities and facilities. The total sale consideration was Rs. 25,60,242/-. The entire amount of Rs. 25,60,242/- was paid to the opposite party in lump sum out of the buyback amount of flat Nucleus Breeze 4B owned by the complainant in opposite party’s Breeze Apartment Project at Vennala. As per the agreement opposite party promised to complete the construction and hand over the possession within 24 months with a grace period of 3 months from the effective date. Though the period and grace period was over by September 2017 the project is not yet completed. There is absolutely no justification on the part of the opposite party in not completing the construction and handing over the possession of the apartment to the complainant even after receiving the entire sale consideration on the date of agreement itself. Being aggrieved of the failure of the opposite party to perform their part of contract complainant had filed the consumer complaint seeking the following prayers. (a) Direct the opposite party to complete the construction within such time as may be ordered by this Commission and direct the opposite party to hand over the possession, execute the sale deed in favour of the complainant as agreed on 03.07.2015 or in the alternative to refund Rs. 25,60,242/- with interest at 15% from 03.07.2015. (b) Direct the opposite party to pay 15% interest for Rs. 25,60,242/- from October 2017 the agreed date of handing over until the possession is handed over. (c) Direct the opposite party to pay a sum of Rs. 1,00,000/- towards the mental pain and agony undergone by the complainant on account of the inordinate delay in settling the matter. (d) Order the opposite party to pay the costs to the complainant.
2. On receiving the complaint, notice was issued to the opposite party and even after accepting notice, opposite party neither appeared before the commission nor submitted any version. Hence the opposite party was set exparte.
3. Complainant has filed his evidence by way of affidavit supporting the allegations made in the complaint. Complainant produced 4 documents which were marked as Exts. A 1 to A4. Advocate commissioner was deputed to note the nature of work done and works pending for finishing the apartment and he has filed the report and the report is marked Ext. C1.
4. Ext. A1 is the copy of the agreement dated 03.07.2015 entered into by the complainant and opposite party. Copy of the lawyer’s notice dated 14.02.2018 and its acknowledgment card are Exts. A2 & A3 respectively. Ext. A4 is the document issued by the opposite party through which payment of entire sale consideration by way of exchange/buyback of another flat of the complainant is established.
5. The commissioner in Ext. C1 report has categorically stated that there are many pending works yet to be completed in the apartment and in the common area of the apartment complex. He has also reported that the pending works will not be completed in the near future.
6. Since there is no contra evidence before us we are inclined to accept the proof affidavit filed by the complainant. The proof affidavit filed by the complainant reaffirmed the allegations in the complaint. Thus it stands true that despite having received entire sale consideration of Rs. 25,60,242/- the opposite party has failed to deliver possession of the apartment to the complainant. In the absence of any explanation for failure of opposite party to deliver the possession of apartment within the stipulated time, we have no hesitation in concluding that opposite party has committed deficiency of service and also indulged in unfair trade practice.
7. Clause 4.1 of the sale and construction agreement deals with the compensation to be awarded by the opposite party in the event of their failure to give possession within the stipulated period. As per clause 4.1 Expected Possession Time: Based on the present estimations, the Builder endeavours to complete construction of the said Apartment and hand over possession thereof to the purchaser within 24 months with a grace period of 3 months from the effective date or from the date on building plan/permit are sanctioned by the authorities concerned, whichever is later provided that the Builder shall be entitled to reasonable extension of time for giving delivery of the said apartment on the aforesaid date, if the completion of the said apartment is delayed on account of force majeure events; Any delay in payments stipulated in this agreement by the purchaser; Any delay in obtaining any approval, sanction of the authorities concerned; Any delay due to any order, notification of authorities concerned; Any delay in obtaining electricity and/or water connections and; Any default by the purchaser of the terms and conditions of this agreement.
8. On reading the above noted clause of the sale and construction agreement it can be seen that it will attract only in case in which delay is for a reasonable period and it has occurred because of unfavourable circumstances. This clause would not apply in case where builder after receiving the entire amount failed to take steps to complete the construction in time. In the instant case the opposite party has not shown any circumstance or reason which prevented it to complete the construction and to deliver the possession to the complainant within the stipulated period.
9. Thus, in our view, opposite party is liable to refund the money received from the complainant with 10% interest.
10. In view of the discussions above the complaint is allowed with following directions.
(1) Opposite party shall refund the entire amount of Rs. 25,60,242/- to the complainant within one month from the date of receipt of copy of this order along with compensation by way of 10% interest from October 2017, the agreed date of handing over of the flat till realization of the amount.
(2) Opposite party shall pay a sum of Rs. 25,000/- as cost of litigation to the complainant.
T.S.P MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
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C.C. No. 44/2018
APPENDIX
I COMPLAINANT’S WITNESS:
NIL
II COMPLAINANT’S EXHIBITS:
A1 - Copy of agreement dated 03.07.2015
A2 - Copy of lawyer’s notice dated 14.02.2018
A3 - Acknowledgement card
A4 - Copy of payment schedule
III OPPOSITE PARTY’S WITNESS:
NIL
IV OPPOSITE PARTY’S EXHIBITS:
NIL
V COURT EXHIBIT
C1 - Commission Report
T.S.P MOOSATH : JUDICIAL MEMBER
RANJIT. R : MEMBER
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