KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 377/07 JUDGMENT DATED: 20.3.2009 PRESENT JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT SMT. VALSALA SARANGADHARAN : MEMBER 1. C.V.P.Realtors(P) Ltd., represented by its Managing Director Mr.John.C.Philipose, Residing at Chandraviruthil House, Kulakkad, Thiruvalla. 2. Anitha C.John, Director, : APPELLANTS -do-do- (By Adv.K.Jayachandran) Vs. P.C.Thomas, : RESPONDENT Tharayil Bunglow, Manakala, Adoor. (By Adv.S.Reghukumar) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT The appellants are the opposite parties in OP.241/04 in the file of CDRF, Pathanamthitta. The appellants are under orders to pay interest at the rate of 12% on Rs.12,00,000/- from the date of complaint till the date of review order dated 30.7.07 and thereafter at 10% per annum till delivery of possession of the flat and also to pay Rs.50000/- as compensation and Rs.1000/- as cost. 2.The case of the complainant is against the 1st opposite party Managing Director of the firm of Builders and the 2nd opposite party Director of the Ist opposite party company the promotors of CVP Dimond Plaza a multi storied apartments. The complainant on 5.3.04 entered into an agreement with the 1st opposite party for the purchase of a flat therein ie. flat No.1/5 for a consideration of 12,00,000/-. The entire consideration was paid in advance. It is agreed to hand over the constructed flat on 30.6.04. On 2.7.04, 26.10.2004 and 3.11.2004 the complainant sent notices demanding possession of flat. The opposite parties as per letter dated 3.7.04 promised to complete the construction by September 2004 and again as per the letter dated 30.10.2004 to complete the construction by November 2004 but so far construction has not been completed. As per Clause 11 of the agreement the petitioner is entitled to get 22% interest per annum on the amount paid for the period of delay. The complainant has also sought for 1,00,000/- towards damages and interest at 22% on Rs.12,00,000/- from the date of agreement till delivery of possession of the plat. 3. The opposite parties/appellants stood absent in the proceedings before the Forum. DW1 was examined and Exts. A1 to A6(a) were marked. 4. The Forum after considering the evidence pronounced a detailed order dated 9.6.05 directing the appellants to pay interest at 12% on Rs.12,00,000/- from the date of agreement till the date of the order and thereafter interest at 6% and also Rs.50000/- as compensation and 1000/- as cost. It was also provided therein that if the amount is not paid within two months the future interest will be at the rate of 9%. The Forum thereafter as per the order 30.7.07 reviewed the order directing the opposite party to pay interest on Rs.12,00,000/- from the date of OP till 30.7.07, the date of the order in the review petition and thereafter at 10% till delivery of possession of the flat. The order as to compensation and cost was retained. 5. The appellant has contended in the appeal memorandum that the complainant was an employee of the opposite party company and that he had deposited Rs.12,00,000/- and received interest on the deposit periodically, atlast in March 2004. Although the price of the apartment would be more than 18,00,000/- the appellants agreed to give him an apartment for 12,00,000/- and the agreement was executed. It was also mentioned that the sale deed was executed and the original was entrusted to him. It is contended that it is suppressing the above facts that the complainant approached the Forum. Review order is not sustainable; and has sought for setting aside the order. 6. Nothing is mentioned in the appeal memorandum as the reason for the lapse and remaining ex parte before the Forum. 7.After the respondent/complainant entered appearance the appellants suggested a settlement. It was agreed on 29.4.08 before this Commission by the Managing Director and his counsel that the construction will be completed within one month and the possession would be handed over. The same was not done and further time was sought on 30.6.08. It was submitted by the counsel for the appellants that the completed flat would be handed over within two months. As the above period also expired the respondent/ complainant filed a Commission application to assertain as to the progress of construction of the particular flat. It was submitted that the construction all other have been completed except the flat meant for the complainant. No objection was filed to the application for taking out a commission. 8. The Commissioner who is a chartered engineer has noted that almost all the flats in the building are seen occupied. With respect to the impugned flat the Commissioner has noted that a number of works including water supply to the rooms, electrification, plastering, flooring, shutters for nine doors, painting of doors and windows, wall painting and kitchen slab and sink are yet to be done. The Commissioner has also assessed in the amounts required for doing the above works. He has noted ie sum of Rs.2,42,421/- would be required for completing the above works. The commissioner examined the flat in the presence of both sides. The Commissioner has also provided separate split up figure of the items. 9. The appellant has filed objection mentioning that the cost of the balance work would work out only Rs. 1,75,000/- at the maximum. 10. Evidently even after undertaking to complete the construction and hand over the flat within one month from 29.4.08 and further seeking extension for two months on 30.6.08, so far the appellants have not completed the construction or did anything to complete the construction or handed over the flat. The contention of the appellant that the sale deed has been executed and that the same has been suppressed by the complainant we find is of no consequence . The copy of the above sale deed was produced herein by the appellant which is dated 25.5.04. It is only with respect to the proportionate undivided right of 43.40 Sq.ms and 3.90 sq.ms falling in two survey Nos. It is evident from the copies of the correspondence produced that the appellant has repeatedly sought for time for completion of construction of the flat. There is absolutely no evidence to support the contention that the complainant had entrusted Rs.12,00,000/- with the appellant with understanding to receive the interest. In the circumstances the appeal is liable to be dismissed. The order of the Forum is modified as follows: the appellants shall hand over immediate possession of the flat ie flat No.1/5 to the complainant/respondent. The appellant will also liable to pay a sum of Rs.2,42,421/- to the complainant. This is the amount assessed by the Commissioner that would be required for completing the construction. The appellant will also liable to pay 50,000/-as compensation and cost of Rs.1000/- as ordered by the Forum. The direction to pay interest at 12% on Rs. 12,00,000/- appears not required in the circumstances. If the flat is not handover and the amounts as ordered is not paid within two months from today the complainant would be entitled for interest at 12% on Rs.12,00,000/- from the date of the OP till realisation. The complainant would also be entitled to execute this order for possession of the flat and also for compensation and cost. The appeal is dismissed. Order of the Forum is modified. JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT SMT. VALSALA SARANGADHARAN : MEMBER
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