BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. NO. 410/2001 Filed on 08..10..2001

Dated: 15..12..2008

Complainant:

N.R. Pillai, Proprietor, M/s. Asian Agencies, T.C.9/2762, Edapazhanji, Sasthamangalam-P.O., Thiruvananthapuram.

(By Adv. M. Habeebullah)

Opposite parties:

1. P.A. Ramesh Kumar, S/o Appukuttan Nair, Ambalayam, Arasuparambu, Nedumangadu.

2. M. Ramani Amma, D/o Madhavikutty Amma, Ambalayam, Arasuparambu, Nedumangadu.

3. P.A. Ravikumar, S/o Appukuttan Nair, Ambalayam, Arasuparambu, Nedumangadu.

(Opp. Parties 1 to 3 by Adv. V. Ajakumar)

4. M/s. Vasanth Apartments and Constructions Pvt. Ltd., represented by its Managing Director B. Sathish Nair, T.C.9/2105, Sankar Road, Sasthamangalam P.O., Thiruvananthapuram.

5. B. Sathish Nair, Managing Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., T.C.9/2105, Sankar Road, Sasthamangalam-P.O., Thiruvananthapuram.

6. Telma Satish Nair, Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., Aparna, T.C.7/1426, Kattachal Road, Vattiyoorkavu-P.O., Thiruvananthapuram.

7. R. Gopinathan Nair, Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., R.G.Buildings, Sasthamkovil Road, Thiruvananthapuram.

(By Adv. V.Ajakumar)

8. M/s. Heera Constructions Co.(P) Ltd., Regional Office at Heera Park, M.P. Appan Road, Vazhuthacaud, Thiruvananthapuram. Represented by its Managing Director, A.A.R.Babu.

9. A.A.R.Babu, Managing Director, Heera Constructions Co. (P)Ltd., Heera Park, M.P. Appan Road, Vazhuthacaud, Thiruvananthapuram.

(opp. Parties 8 & 9 by adv. A. Balakrishnan)

This O.P having been heard on 15..11..2008, the Forum on 15..12..2008 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the Managing Director, M/s. Vasanth Apartments and Construction (P) Ltd. Mr. Satish Nair approached the complainant and offered to give a flat at the rate of Rs.900/- per square feet and induced the complainant to book a flat in the Vasanth Serenade Apartments proposed to be constructed in the plot owned by opposite parties 1 to 3. 5^th opposite party assured that the construction work would be started in the month of February 1998 itself and would be completed and handed over to the complainant within a period of 22 months and on the assurance given by Mr. Satish Nair (5^th opposite party) the complainant booked a flat having an area of 1275 sq.feet at the rate of Rs.900/sq.ft. The complainant gave an amount of Rs.1,24,750/- by way of 2 cheques dated 06..12..1997 & 01..01..1998 in favour of Vasanth Serenade Apartments and Construction Pvt Ltd being 10% of the total amount for the flat. On 08..12..1997 the 5^th opposite party sent an allotment letter to the complainant regarding the allotment of the flat to the complainant, as per the allotment letter Flat No.1D in the first floor in the Vasanth Serenade Apartments was allotted to the complainant. 5^th opposite party issued receipt for Rs.1,24,750/-. 5^th opposite party did not start the work immediately and complainant doubted the genuinity of the project and enquired the matter with opposite party. 5^th opposite party put forth some lame excuses which were not satisfactory to the complainant. On getting information that the said project is not going to be completed in the near future the complainant was forced to demand immediate construction or refund of the amount. On 11..06..1998, 5^th opposite party sent a letter informing the complainant that the work has started again and piling will commence before 7^th of July and requested him to get ready for making the payment by the time when the piling starts. Thereafter there was no response from the opposite parties 4 to 7 with regard to the construction. During the said period the complainant visited the site several times and there was no responsible person there to answer the question of the complainant. On 06..10..1999 complainant received another letter from the 5^th opposite party. On getting the letter the complainant visited the site and found that the work has not been commenced. The request of the complainant to refund the amount was not heard by the opposite parties. Meanwhile opposite parties 1 to 7 entered into an agreement with 8^th opposite party M/s. Heera Constructions whereby all the rights and liabilities were transferred to 8^th opposite party without the knowledge of the complainant. The complainant contacted 8^th and 9^th opposite parties and 9^th opposite party expressed his total ignorance regarding the booking and allotment of the flat No.1D in Vasanth Serenade Apartments to the complainant. Complainant then issued notice to opposite parties 1 & 2, they have not accepted the same and opposite parties 6 & 9 have sent reply notice. Opposite parties cheated the complainant and committed unfair trade practice. Hence this complaint to direct the opposite parties to allot the flat to the complainant or to refund the advance amount of Rs.1,24,750/- with 18% interest, to pay compensation of Rs.1,00,000/- and cost.

2. Opposite parties 1 to 3 entered appearance and filed version contending that the complainant is not a consumer as defined under the Consumer Protection Act. The complaint is hopelessly barred by limitation. The agreement between opposite parties 1 to 3 and 4^th opposite party never authorised the 4^th or 5^th opposite parties to enter into any agreement for sale with any third party. 4^th opposite party undertook to construct a multi storied residential apartments in the property belongs to opposite parties 1 to 3 and to provide 43% of the total built up area to parties 1 to 3. The complainant is a close associate of the 5^th opposite party and the complainant and the 5^th opposite party have joined hands to cheat the other opposite parties. The alleged agreement will not bind other opposite parties other than the opposite parties 4 to 6. Opposite parties 1 to 3 has no knowledge agreement between the complainant and the 5^th opposite party. Complainant never contacted 5^th opposite party. 4^th opposite party have committed the breach of agreement executed between opposite parties 1 to 3 & 4 and hence the said agreement is cancelled. On cancellation of the agreement between 4^th opposite party and opposite parties 1 to 3 a joint development agreement was entered into between opposite parties 1 to 3 and 8^th opposite party vide agreement dated 03..12..2000. As per the terms of the agreement 4^th opposite party has agreed to pay off all its creditors with whom the 4^th opposite party has transacted business without any authority. Complainant can never make a claim against opposite parties 1 to 3. Hence opposite parties 1 to 3 prayed for dismissal of the complaint with cost.

3. Opposite parties 4 to 6 remain ex-parte.

4. 7^th opposite party entered appearance and filed version contending that the complainant is not a consumer. The complaint is hopelessly barred by limitation. 7^th opposite party has resigned from the directorship of the 4^th opposite party company from 25..05..1998 and the same was accepted by the Registrar of Companies. The complainant is a close associate with the 5^th opposite party. The alleged agreement is a collusive one created jointly by the complainant and the 5^th opposite party with ulterior motives. 7^th opposite party has no knowledge about the cancellation of the agreement in between the opposite parties 1 to 3 & 4 to 6 and any new arrangement in between the opposite parties 1 to 3 and 8 & 9. 7^th opposite party has no involvement in any of the alleged transactions with the complainant. Hence 7^th opposite party prayed for dismissal of the complaint.

5. 8^th & 9^th opposite parties entered appearance and filed version contending that the 8^th & 9^th opposite parties are unnecessary parties. 8^th & 9^th opposite parties neither rendered any service nor promised to do anything to the complainant about the allegation contained in the complaint. Complainant never approached the said opposite parties for rendering any service. Neither the complainant nor any person approached the opposite parties 8 & 9 to get the details regarding the payment and communications. Opposite parties 8 & 9 filed caveat not only against the complainant but also against some other persons. The said caveat was filed with an intention to safeguard the money invested in the construction project so as to complete the project within a stipulated time. There is no cause of action as averred in the complaint. Complainant is not entitled to get any of the reliefs. Hence opposite parties 8 & 9 prayed for dismissal of the complaint.

6. The points that would arise for consideration are:

    

1. Whether there has been deficiency in service on the part of opposite parties?

   (ii) Whether opposite parties are liable to allot the flat or to refund the advance amount with interest to the complainant?

    

   (iii)Other reliefs and costs?

7. In support of the complaint, complainant has filed proof affidavit and marked Exts.P1 to P13. In rebuttal, 1^st opposite party has filed affidavit for himself and for and on behalf of opposite parties 2 & 3 and marked Exts.D1 & D2. 7^th & 8^th opposite party have filed affidavit and marked Exts.D3 to D5.

8. Points (i) to (iv): It has been the case of the complainant, the Managing Director of the 4^th opposite party, M/s. Vasanth Apartments and Construction (P) Ltd. Mr. Satish Nair had approached the complainant and offered to give a flat at the rate of Rs.900/sq.ft and induced the complainant to book a flat in the Vasanth Serenade Apartment proposed to be constructed in the plot owned by the first three opposite parties in pursuance of an agreement between the first three opposite parties and 4^th opposite party, that complainant booked a flat having an area of 1275 sq.ft at the rate of Rs.900 per square feet in the said Apartment and gave an amount of Rs.1,24,750/- by way of two cheques dated 06..12..1997 & 01..01..1998 in favour of Vasanth Apartments and Construction (P) Ltd being 10% of the total amount for the flat and that the 5^th opposite party sent an allotment letter dated 08..12..1997 to the complainant. Ext.D1 is the copy of the allotment letter issued by the 5^th opposite party to the complainant. As per Ext.P1, the total cost of the allotted flat would be Rs.11,47,500 = (1275 x 900), Electrical deposit would be Rs.98,000/-, Documentation would be Rs.35,000/-, Sales Tax would be Rs. 33,000/-. Grand total Rs.13,13,500/-. It is stated in Ext.P1 that Registration amount of Rs.1,24,750/- has been made via cheques, 25% of the total amount amounting to Rs.3,11,375/- towards booking shall be made at the time of Memorandum of Understanding (MOU) signed during the progress of the foundation work and balance to be paid in 22 monthly installments. It is further stated that the said flat shall be handed over full and complete in a period of 22 months from the date of MOU subject to payments being correct and on schedule, Ext.P2 series are the copies of this receipts of Rs.1,24,750/- dated 08..12..1997 and 09..01..1998 issued by the 5^th opposite party and submission by the counsel appearing for the complainant was that 5^th opposite party did not start the construction work as agreed and complainant doubted the genuinety of the said project and enquired the matter with the 5^th opposite party who put some lame excuses and that on 11..06..1998, 5^th opposite party sent a letter to the complainant informing him the work has started again and piling will commence before the 7^th July and requested him to get ready for making payment by the time when the piling starts. Ext.P3 is the copy of the said letter dated 11..06..1998 and it has been submitted by the complainant that after issuing Ext.P3 letter, there was no response from opposite parties 4 to 7 with regard to the construction of the said Apartment and that complainant visited the site several times and there was no responsible persons there to answer the question of the complainant and the persons present there used to say that the work would start immediately. It has been submitted by the complainant that he received a letter (Ext.P4) dated 06..10..1999 from the 5^th opposite party informing that the piling work has been completed and balance column casting is in progress and that on getting the Ext.P4 letter complainant visited the site and found that the work has not been commenced and this was informed to the 5^th opposite party and asked why such a false letter (Ext.P4) was sent to the complainant. Complainant did not make the payment but requested the 5^th opposite party to refund the amount received from the complainant. Complainant submitted that on 03..12..2000 opposite parties 1 to 3 (the land owners) and opposite parties 4 to 7 (the builder) entered into an agreement with the 8^th opposite party M/s. Heera Constructions whereby all the rights and liabilities were transferred to the 8^th opposite party without knowledge of the complainant and that when complainant contacted opposite parties 4 to 7, they informed that the list of the allottees and accounts were entrusted to 8^th opposite party. Complainant submitted that when he contacted the 8^th opposite party, its Managing Director, the 9^th opposite party expressed his ignorance regarding the booking and allotment of the flat to the complainant, but 9^th opposite party offered a flat at a revised rate which is very high and not acceptable to the complainant. Complainant submitted that the 5^th opposite party filed a caveat against the complainant before the Sub Court, Thiruvananthapuram in the month of December 2000 and another in the month of March 2001 and 9^th opposite party also filed a caveat against the complainant in the month of 2001. Exts.P5, P6 & P7 are the copies of the said caveats. Submission by the complainant was that complainant sent advocate notice to opposite parties demanding the allotment of the flat or refund of the advance amount of Rs.1,24,750/-. Ext.P8 is the copy of advocate notice. Ext.P9 is the postal receipts. Ext.P10 series copies of acknowledgment cards. 1^st & 2^nd opposite parties had not accepted the Advocate notice. Ext.P11 shows the copies of unclaimed notice by the opposite parties 1 & 2. Ext.P12 is the reply sent by the 6^th opposite party stating that complainant had never booked any flat with the company. Ext.P13 is the reply sent by the 9^th opposite party. As per Ext.P13 it is stated while entering into agreement with opposite parties 1 to 5 in the advocate notice (Ext.P8) neither given nor informed the name of the complainant to whom they owe obligation. 7 & 9^th opposite party neither cheated nor demanded any money from the complainant. Submission by opposite parties 1 to 3 that the complainant was filed in collusion with opposite parties 4 to 6 based on some manipulated and concoted documents and opposite parties 1 to 3 had no knowledge of the same. Opposie parties 1 to 3 entered into an agreement with 4^th opposite party to construct a multi storied residential apartments in the property belongs to opposite parties 1 to 3 and that 4^th opposite party have committed the breach of agreement in between the opposite parties 1 to 3 and the 4^th opposite party (Ext.D1) and 4^th opposite party has agreed to cancel the said agreement (Ext.D1). On cancellation of Ext.D1, a joint development agreement was entered into between the parties in Ext.D1 and the 8^th opposite party M/s. Heera Construction Company vide agreement dated 03..12..2000 (Ext.D2). Opposite parties 1 to 3 further submitted that as per terms of the agreement(Ext.D2) the 4^th opposite party M/s. Vasanth Apartments and Construction (P) Ltd agreed to pay off its creditors with whom 4^th opposie party has transacted business without any authority. On a perusal of Ext.D2 it is found that the second party in the said agreement (4^th opp.party) undertakes to clear all the liabilities attached to this project which were arisen/to be out of agreement and undertakings by the second party only. Further as per Ext.D2 it is unconditionally undertaken by the second party (Vasanth Apartments and Constructions (P) Ltd.) that any person being allottees of party No.2, its agreement holders, contractors, suppliers etc will not make any claim against party No.1 (8^th opp. Party M/s. Heera Construction Company) and parties 3 to 5 (that is opp. Parties 1 to 3 in this case). Submission by the 7^th opposite party is that 7^th opp. Party has resigned from the directorship of the 4^th opposite party company, with effect from 25..05..1998 and the same was accepted by all including the Registrar of Companies and that the alleged agreement is a collusive one created jointly by the complainant and 5^th opposite party and that complainant never contacted the 7^th opposite party and 7^th opposite party has no knowledge regarding the cancellation of agreement between the opposite parties 1 to 3 and 4 to 6 and any arrangement made in between the opposite parties 1 to 3 and 8 & 9. Submission by opposite parties 8 & 9 is such that they are unnecessary parties in this complaint and that opposite parties 8 & 9 are totally unaware of the facts mentioned in the complaint and that opposie parties 8 & 9 never rendered any service nor promised to do anything to the complainant about the allegations in the complaint. On going through the complaint, versions, affidavits, Exts.P1 to P13 & Exts.D1 to D5, it is to be noted that complainant has never produced any document showing any transaction between complainant and opposie parties 1 to 3 and opposite parties 7 to 9. Exts. P1 to P4 reveal the transaction between the complainant and 5^th opposie party in the name of 4^th opposite party M/s. Vasanth Apartment and Construction Company (P) Ltd. In Ext.P1 & P2, 5^th opposite party is designated as Executive Director of the 4^th opposite party, while in Ext.P3 to P6, 5^th opposite party is designated as Managing Director of the 4^th opposite party. As per Exts. P1 & P2, 5^th opposite party has received Rs.1,24,750/- towards Registration charge from the complainant in connection with allotment letter for flat in Vasant Apartment. As per Ext.P3 temporary stagnation happened to the project. There was delay in the completion of the project. 5^th opposite party attempted to bring to rest all the unwanted fears regarding the delay in the completion of project by Ext.P4. On perusing Exts.P1 to P4 it is crystal clear that in connection with allotment of flat, 5^th opposite party alone has received Rs.1,24,750/- from the complainant. 5^th opposite party is designated as Executive Director as well as Managing Director. No service is seen availed by the complainant from other opposite parties directly by way of any documents. As per Ext.D2 the agreement between opposite parties 1 to 3 and opposite parties 4 to 7 stands cancelled. Hence the said project did not materialise. 5^th opposite party remain ex-parte. No version filed. In view of the above there is deficiency in service on the part of 5^th opposite party. Complainant has paid Rs.1,24,750/- to the 5^th opposite party for allotment of flat, allotment letter was also issued by the 5^th opposie party. Taking into consideration of the totality of circumstance we are of the view that it will be expedient, justice will be well met, if 5^th opposite party is directed to refund Rs. 1,24,750/- with interest at the rate of 12% to the complainant against all his claims.

In the result, complaint is allowed. 5^th opposite party shall pay the complainant a sum of Rs.1,24,750/- (Rupees One lakh twentyfour thousand seven hundred and fifty only) with interest at the rate of 12% from the date of the complaint (08..10..2001) within two months from the date of this order. If the said amount is not paid within the said period, the said amount shall carry interest at the rate of 18% from the date of the complaint. 5^th opposite party shall pay Rs.1,000/- (Rupees One thousand only) as cost to the complainant.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of December, 2008.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.410/2001

APPENDIX

I. Complainant's witness: NIL

II. Complainant's documents:

P1 : Copy of allotment letter for flat dt.08.12.1997

P2 : " of receipt dated 09..01..1998

P3 : " of letter dated 11.06.08 issued to the complainant

P4 : " 06.10.99 "

P5 : Photocopy of caveat submitted by the opp. Party dated 20..12..2000

P6 : " of caveat under section 148 of CPC dt.16.03.2001

P7 : " of " 15.06.2001

P8 : Copy of advocate notice dt.23.07.01

P9 : Photocopy of postal receipt dt. 24.07.2001

P10 : " of acknowledgment card

P11 : " of postal cover reeturned 'with unclaimed' remarks

P12 : " of reply notice dt. 07.08.2001

P13 : " dated 22.08.01

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Photocopy of Memorandum of agreement dated 03.10.1995

D2 : " of agreement dated 03..12..2000

D3 : Copy of advocate notice dated 24.08.2001

D4 : Acknowledgment card dt. 25.08.2001

D5 : Photocopy of suit for Inter pleader

PRESIDENT

ad. 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P. NO. 410/2001 Filed on 08..10..2001

Dated: 15..12..2008

Complainant:

N.R. Pillai, Proprietor, M/s. Asian Agencies, T.C.9/2762, Edapazhanji, Sasthamangalam-P.O., Thiruvananthapuram.

(By Adv. M. Habeebullah)

Opposite parties:

1. P.A. Ramesh Kumar, S/o Appukuttan Nair, Ambalayam, Arasuparambu, Nedumangadu.

2. M. Ramani Amma, D/o Madhavikutty Amma, Ambalayam, Arasuparambu, Nedumangadu.

3. P.A. Ravikumar, S/o Appukuttan Nair, Ambalayam, Arasuparambu, Nedumangadu.

(Opp. Parties 1 to 3 by Adv. V. Ajakumar)

4. M/s. Vasanth Apartments and Constructions Pvt. Ltd., represented by its Managing Director B. Sathish Nair, T.C.9/2105, Sankar Road, Sasthamangalam P.O., Thiruvananthapuram.

5. B. Sathish Nair, Managing Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., T.C.9/2105, Sankar Road, Sasthamangalam-P.O., Thiruvananthapuram.

6. Telma Satish Nair, Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., Aparna, T.C.7/1426, Kattachal Road, Vattiyoorkavu-P.O., Thiruvananthapuram.

7. R. Gopinathan Nair, Director, M/s. Vasanth Apartments and Constructions Pvt. Ltd., R.G.Buildings, Sasthamkovil Road, Thiruvananthapuram.

(By Adv. V.Ajakumar)

8. M/s. Heera Constructions Co.(P) Ltd., Regional Office at Heera Park, M.P. Appan Road, Vazhuthacaud, Thiruvananthapuram. Represented by its Managing Director, A.A.R.Babu.

9. A.A.R.Babu, Managing Director, Heera Constructions Co. (P)Ltd., Heera Park, M.P. Appan Road, Vazhuthacaud, Thiruvananthapuram.

(opp. Parties 8 & 9 by adv. A. Balakrishnan)

This O.P having been heard on 15..11..2008, the Forum on 15..12..2008 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the Managing Director, M/s. Vasanth Apartments and Construction (P) Ltd. Mr. Satish Nair approached the complainant and offered to give a flat at the rate of Rs.900/- per square feet and induced the complainant to book a flat in the Vasanth Serenade Apartments proposed to be constructed in the plot owned by opposite parties 1 to 3. 5^th opposite party assured that the construction work would be started in the month of February 1998 itself and would be completed and handed over to the complainant within a period of 22 months and on the assurance given by Mr. Satish Nair (5^th opposite party) the complainant booked a flat having an area of 1275 sq.feet at the rate of Rs.900/sq.ft. The complainant gave an amount of Rs.1,24,750/- by way of 2 cheques dated 06..12..1997 & 01..01..1998 in favour of Vasanth Serenade Apartments and Construction Pvt Ltd being 10% of the total amount for the flat. On 08..12..1997 the 5^th opposite party sent an allotment letter to the complainant regarding the allotment of the flat to the complainant, as per the allotment letter Flat No.1D in the first floor in the Vasanth Serenade Apartments was allotted to the complainant. 5^th opposite party issued receipt for Rs.1,24,750/-. 5^th opposite party did not start the work immediately and complainant doubted the genuinity of the project and enquired the matter with opposite party. 5^th opposite party put forth some lame excuses which were not satisfactory to the complainant. On getting information that the said project is not going to be completed in the near future the complainant was forced to demand immediate construction or refund of the amount. On 11..06..1998, 5^th opposite party sent a letter informing the complainant that the work has started again and piling will commence before 7^th of July and requested him to get ready for making the payment by the time when the piling starts. Thereafter there was no response from the opposite parties 4 to 7 with regard to the construction. During the said period the complainant visited the site several times and there was no responsible person there to answer the question of the complainant. On 06..10..1999 complainant received another letter from the 5^th opposite party. On getting the letter the complainant visited the site and found that the work has not been commenced. The request of the complainant to refund the amount was not heard by the opposite parties. Meanwhile opposite parties 1 to 7 entered into an agreement with 8^th opposite party M/s. Heera Constructions whereby all the rights and liabilities were transferred to 8^th opposite party without the knowledge of the complainant. The complainant contacted 8^th and 9^th opposite parties and 9^th opposite party expressed his total ignorance regarding the booking and allotment of the flat No.1D in Vasanth Serenade Apartments to the complainant. Complainant then issued notice to opposite parties 1 & 2, they have not accepted the same and opposite parties 6 & 9 have sent reply notice. Opposite parties cheated the complainant and committed unfair trade practice. Hence this complaint to direct the opposite parties to allot the flat to the complainant or to refund the advance amount of Rs.1,24,750/- with 18% interest, to pay compensation of Rs.1,00,000/- and cost.

2. Opposite parties 1 to 3 entered appearance and filed version contending that the complainant is not a consumer as defined under the Consumer Protection Act. The complaint is hopelessly barred by limitation. The agreement between opposite parties 1 to 3 and 4^th opposite party never authorised the 4^th or 5^th opposite parties to enter into any agreement for sale with any third party. 4^th opposite party undertook to construct a multi storied residential apartments in the property belongs to opposite parties 1 to 3 and to provide 43% of the total built up area to parties 1 to 3. The complainant is a close associate of the 5^th opposite party and the complainant and the 5^th opposite party have joined hands to cheat the other opposite parties. The alleged agreement will not bind other opposite parties other than the opposite parties 4 to 6. Opposite parties 1 to 3 has no knowledge agreement between the complainant and the 5^th opposite party. Complainant never contacted 5^th opposite party. 4^th opposite party have committed the breach of agreement executed between opposite parties 1 to 3 & 4 and hence the said agreement is cancelled. On cancellation of the agreement between 4^th opposite party and opposite parties 1 to 3 a joint development agreement was entered into between opposite parties 1 to 3 and 8^th opposite party vide agreement dated 03..12..2000. As per the terms of the agreement 4^th opposite party has agreed to pay off all its creditors with whom the 4^th opposite party has transacted business without any authority. Complainant can never make a claim against opposite parties 1 to 3. Hence opposite parties 1 to 3 prayed for dismissal of the complaint with cost.

3. Opposite parties 4 to 6 remain ex-parte.

4. 7^th opposite party entered appearance and filed version contending that the complainant is not a consumer. The complaint is hopelessly barred by limitation. 7^th opposite party has resigned from the directorship of the 4^th opposite party company from 25..05..1998 and the same was accepted by the Registrar of Companies. The complainant is a close associate with the 5^th opposite party. The alleged agreement is a collusive one created jointly by the complainant and the 5^th opposite party with ulterior motives. 7^th opposite party has no knowledge about the cancellation of the agreement in between the opposite parties 1 to 3 & 4 to 6 and any new arrangement in between the opposite parties 1 to 3 and 8 & 9. 7^th opposite party has no involvement in any of the alleged transactions with the complainant. Hence 7^th opposite party prayed for dismissal of the complaint.

5. 8^th & 9^th opposite parties entered appearance and filed version contending that the 8^th & 9^th opposite parties are unnecessary parties. 8^th & 9^th opposite parties neither rendered any service nor promised to do anything to the complainant about the allegation contained in the complaint. Complainant never approached the said opposite parties for rendering any service. Neither the complainant nor any person approached the opposite parties 8 & 9 to get the details regarding the payment and communications. Opposite parties 8 & 9 filed caveat not only against the complainant but also against some other persons. The said caveat was filed with an intention to safeguard the money invested in the construction project so as to complete the project within a stipulated time. There is no cause of action as averred in the complaint. Complainant is not entitled to get any of the reliefs. Hence opposite parties 8 & 9 prayed for dismissal of the complaint.

6. The points that would arise for consideration are:

    

1. Whether there has been deficiency in service on the part of opposite parties?

   (ii) Whether opposite parties are liable to allot the flat or to refund the advance amount with interest to the complainant?

    

   (iii)Other reliefs and costs?

7. In support of the complaint, complainant has filed proof affidavit and marked Exts.P1 to P13. In rebuttal, 1^st opposite party has filed affidavit for himself and for and on behalf of opposite parties 2 & 3 and marked Exts.D1 & D2. 7^th & 8^th opposite party have filed affidavit and marked Exts.D3 to D5.

8. Points (i) to (iv): It has been the case of the complainant, the Managing Director of the 4^th opposite party, M/s. Vasanth Apartments and Construction (P) Ltd. Mr. Satish Nair had approached the complainant and offered to give a flat at the rate of Rs.900/sq.ft and induced the complainant to book a flat in the Vasanth Serenade Apartment proposed to be constructed in the plot owned by the first three opposite parties in pursuance of an agreement between the first three opposite parties and 4^th opposite party, that complainant booked a flat having an area of 1275 sq.ft at the rate of Rs.900 per square feet in the said Apartment and gave an amount of Rs.1,24,750/- by way of two cheques dated 06..12..1997 & 01..01..1998 in favour of Vasanth Apartments and Construction (P) Ltd being 10% of the total amount for the flat and that the 5^th opposite party sent an allotment letter dated 08..12..1997 to the complainant. Ext.D1 is the copy of the allotment letter issued by the 5^th opposite party to the complainant. As per Ext.P1, the total cost of the allotted flat would be Rs.11,47,500 = (1275 x 900), Electrical deposit would be Rs.98,000/-, Documentation would be Rs.35,000/-, Sales Tax would be Rs. 33,000/-. Grand total Rs.13,13,500/-. It is stated in Ext.P1 that Registration amount of Rs.1,24,750/- has been made via cheques, 25% of the total amount amounting to Rs.3,11,375/- towards booking shall be made at the time of Memorandum of Understanding (MOU) signed during the progress of the foundation work and balance to be paid in 22 monthly installments. It is further stated that the said flat shall be handed over full and complete in a period of 22 months from the date of MOU subject to payments being correct and on schedule, Ext.P2 series are the copies of this receipts of Rs.1,24,750/- dated 08..12..1997 and 09..01..1998 issued by the 5^th opposite party and submission by the counsel appearing for the complainant was that 5^th opposite party did not start the construction work as agreed and complainant doubted the genuinety of the said project and enquired the matter with the 5^th opposite party who put some lame excuses and that on 11..06..1998, 5^th opposite party sent a letter to the complainant informing him the work has started again and piling will commence before the 7^th July and requested him to get ready for making payment by the time when the piling starts. Ext.P3 is the copy of the said letter dated 11..06..1998 and it has been submitted by the complainant that after issuing Ext.P3 letter, there was no response from opposite parties 4 to 7 with regard to the construction of the said Apartment and that complainant visited the site several times and there was no responsible persons there to answer the question of the complainant and the persons present there used to say that the work would start immediately. It has been submitted by the complainant that he received a letter (Ext.P4) dated 06..10..1999 from the 5^th opposite party informing that the piling work has been completed and balance column casting is in progress and that on getting the Ext.P4 letter complainant visited the site and found that the work has not been commenced and this was informed to the 5^th opposite party and asked why such a false letter (Ext.P4) was sent to the complainant. Complainant did not make the payment but requested the 5^th opposite party to refund the amount received from the complainant. Complainant submitted that on 03..12..2000 opposite parties 1 to 3 (the land owners) and opposite parties 4 to 7 (the builder) entered into an agreement with the 8^th opposite party M/s. Heera Constructions whereby all the rights and liabilities were transferred to the 8^th opposite party without knowledge of the complainant and that when complainant contacted opposite parties 4 to 7, they informed that the list of the allottees and accounts were entrusted to 8^th opposite party. Complainant submitted that when he contacted the 8^th opposite party, its Managing Director, the 9^th opposite party expressed his ignorance regarding the booking and allotment of the flat to the complainant, but 9^th opposite party offered a flat at a revised rate which is very high and not acceptable to the complainant. Complainant submitted that the 5^th opposite party filed a caveat against the complainant before the Sub Court, Thiruvananthapuram in the month of December 2000 and another in the month of March 2001 and 9^th opposite party also filed a caveat against the complainant in the month of 2001. Exts.P5, P6 & P7 are the copies of the said caveats. Submission by the complainant was that complainant sent advocate notice to opposite parties demanding the allotment of the flat or refund of the advance amount of Rs.1,24,750/-. Ext.P8 is the copy of advocate notice. Ext.P9 is the postal receipts. Ext.P10 series copies of acknowledgment cards. 1^st & 2^nd opposite parties had not accepted the Advocate notice. Ext.P11 shows the copies of unclaimed notice by the opposite parties 1 & 2. Ext.P12 is the reply sent by the 6^th opposite party stating that complainant had never booked any flat with the company. Ext.P13 is the reply sent by the 9^th opposite party. As per Ext.P13 it is stated while entering into agreement with opposite parties 1 to 5 in the advocate notice (Ext.P8) neither given nor informed the name of the complainant to whom they owe obligation. 7 & 9^th opposite party neither cheated nor demanded any money from the complainant. Submission by opposite parties 1 to 3 that the complainant was filed in collusion with opposite parties 4 to 6 based on some manipulated and concoted documents and opposite parties 1 to 3 had no knowledge of the same. Opposie parties 1 to 3 entered into an agreement with 4^th opposite party to construct a multi storied residential apartments in the property belongs to opposite parties 1 to 3 and that 4^th opposite party have committed the breach of agreement in between the opposite parties 1 to 3 and the 4^th opposite party (Ext.D1) and 4^th opposite party has agreed to cancel the said agreement (Ext.D1). On cancellation of Ext.D1, a joint development agreement was entered into between the parties in Ext.D1 and the 8^th opposite party M/s. Heera Construction Company vide agreement dated 03..12..2000 (Ext.D2). Opposite parties 1 to 3 further submitted that as per terms of the agreement(Ext.D2) the 4^th opposite party M/s. Vasanth Apartments and Construction (P) Ltd agreed to pay off its creditors with whom 4^th opposie party has transacted business without any authority. On a perusal of Ext.D2 it is found that the second party in the said agreement (4^th opp.party) undertakes to clear all the liabilities attached to this project which were arisen/to be out of agreement and undertakings by the second party only. Further as per Ext.D2 it is unconditionally undertaken by the second party (Vasanth Apartments and Constructions (P) Ltd.) that any person being allottees of party No.2, its agreement holders, contractors, suppliers etc will not make any claim against party No.1 (8^th opp. Party M/s. Heera Construction Company) and parties 3 to 5 (that is opp. Parties 1 to 3 in this case). Submission by the 7^th opposite party is that 7^th opp. Party has resigned from the directorship of the 4^th opposite party company, with effect from 25..05..1998 and the same was accepted by all including the Registrar of Companies and that the alleged agreement is a collusive one created jointly by the complainant and 5^th opposite party and that complainant never contacted the 7^th opposite party and 7^th opposite party has no knowledge regarding the cancellation of agreement between the opposite parties 1 to 3 and 4 to 6 and any arrangement made in between the opposite parties 1 to 3 and 8 & 9. Submission by opposite parties 8 & 9 is such that they are unnecessary parties in this complaint and that opposite parties 8 & 9 are totally unaware of the facts mentioned in the complaint and that opposie parties 8 & 9 never rendered any service nor promised to do anything to the complainant about the allegations in the complaint. On going through the complaint, versions, affidavits, Exts.P1 to P13 & Exts.D1 to D5, it is to be noted that complainant has never produced any document showing any transaction between complainant and opposie parties 1 to 3 and opposite parties 7 to 9. Exts. P1 to P4 reveal the transaction between the complainant and 5^th opposie party in the name of 4^th opposite party M/s. Vasanth Apartment and Construction Company (P) Ltd. In Ext.P1 & P2, 5^th opposite party is designated as Executive Director of the 4^th opposite party, while in Ext.P3 to P6, 5^th opposite party is designated as Managing Director of the 4^th opposite party. As per Exts. P1 & P2, 5^th opposite party has received Rs.1,24,750/- towards Registration charge from the complainant in connection with allotment letter for flat in Vasant Apartment. As per Ext.P3 temporary stagnation happened to the project. There was delay in the completion of the project. 5^th opposite party attempted to bring to rest all the unwanted fears regarding the delay in the completion of project by Ext.P4. On perusing Exts.P1 to P4 it is crystal clear that in connection with allotment of flat, 5^th opposite party alone has received Rs.1,24,750/- from the complainant. 5^th opposite party is designated as Executive Director as well as Managing Director. No service is seen availed by the complainant from other opposite parties directly by way of any documents. As per Ext.D2 the agreement between opposite parties 1 to 3 and opposite parties 4 to 7 stands cancelled. Hence the said project did not materialise. 5^th opposite party remain ex-parte. No version filed. In view of the above there is deficiency in service on the part of 5^th opposite party. Complainant has paid Rs.1,24,750/- to the 5^th opposite party for allotment of flat, allotment letter was also issued by the 5^th opposie party. Taking into consideration of the totality of circumstance we are of the view that it will be expedient, justice will be well met, if 5^th opposite party is directed to refund Rs. 1,24,750/- with interest at the rate of 12% to the complainant against all his claims.

In the result, complaint is allowed. 5^th opposite party shall pay the complainant a sum of Rs.1,24,750/- (Rupees One lakh twentyfour thousand seven hundred and fifty only) with interest at the rate of 12% from the date of the complaint (08..10..2001) within two months from the date of this order. If the said amount is not paid within the said period, the said amount shall carry interest at the rate of 18% from the date of the complaint. 5^th opposite party shall pay Rs.1,000/- (Rupees One thousand only) as cost to the complainant.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of December, 2008.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.410/2001

APPENDIX

I. Complainant's witness: NIL

II. Complainant's documents:

P1 : Copy of allotment letter for flat dt.08.12.1997

P2 : " of receipt dated 09..01..1998

P3 : " of letter dated 11.06.08 issued to the complainant

P4 : " 06.10.99 "

P5 : Photocopy of caveat submitted by the opp. Party dated 20..12..2000

P6 : " of caveat under section 148 of CPC dt.16.03.2001

P7 : " of " 15.06.2001

P8 : Copy of advocate notice dt.23.07.01

P9 : Photocopy of postal receipt dt. 24.07.2001

P10 : " of acknowledgment card

P11 : " of postal cover reeturned 'with unclaimed' remarks

P12 : " of reply notice dt. 07.08.2001

P13 : " dated 22.08.01

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Photocopy of Memorandum of agreement dated 03.10.1995

D2 : " of agreement dated 03..12..2000

D3 : Copy of advocate notice dated 24.08.2001

D4 : Acknowledgment card dt. 25.08.2001

D5 : Photocopy of suit for Inter pleader

PRESIDENT