KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
C.C. NO.24/2012
JUDGMENT DATED 25/05/2013
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
COMPLAINANTS:
1. M. Vasudevan, S/o. Sankaran Namboothiri,
‘Mahima’ T.C.43/491(2) Vallakadavu P.O.,
Thiruvananthapuram-08.
2. Nalini.P.N., W/o. M. Vasudevan, ‘Mahima’,
T.C.43/491(2) Vallakadavu P.O.,
Thiruvananthapuram-08.
(By Adv: S/S. K.K. Vijayan & Thomas A John)
Vs
OPPOSITE PARTIES:
1. M/s. Prathasaradhy properties Private Ltd.,
Rep: by in Managing Director,
M/s. Prathasaradhy properties Private Ltd.,
35/3076-A, First Floor, Madampil Apartment,
Thammanam Main Road, Palarivattom,
Cochin-682 025.
2. Mr. Gireesakumar, Managing Director,
M/s. Prathasaradhy properties Private Ltd.,
35/3076 – A, First Floor, Madampil Apartment,
Thammanam Main Road, Palarivattom,
Cochin-682 025.
JUDGMENT
SMT. A. RADHA : MEMBER
The complaint is filed under Section 18 claiming damages from the opposite party and by way of relief Rs.39,22,000/- with future interest @ 12% and to award cost of the proceedings to the complainant is also prayed for.
2. The complainants are husband and wife who retired from Government Service and with the superannuation funds complainants decided to buy a flat and approached the opposite parties. The 1st opposite party is M/s. Parthasarathy Properties Pvt. Ltd. represented by its Managing Director and the 2nd opposite party is Mr.Gireesakumar, Managing Director of the said firm. In pursuance to the promise, offer and representations made by the opposite parties, the complainants entered into an agreement on 22/06/2008 for the purchase of Apartment No.A on 2nd floor of Signet Arc with 1290 sq.ft. and garage No.3 in ground floor. The opposite parties accepted Rs.6,65,000/- as consideration in lieu of the agreement, from the complainants. The total agreed consideration is Rs.26,60,000/-. As per the agreement, the time and date of delivery of possession, was fixed as 24 months from 22nd June 2008 and a fixed time schedule for payment of balance amount was also agreed upon. The opposite parties also promised to build the apartment in 188.537 cents of property comprised in Survey No.406/6-2 in Block No.23 in Vazhakulam Village which was comprised in Sale Deed No.3232/2008 of Sub Registrar Office, Perumbavoor. To the utter dismay, the opposite parties have not even carried out the preliminary work of piling in the site for the construction of the building. Several requests made to the opposite parties were in vain. On 05/03/2012, the complainants issued a notice to the opposites through speed post which was returned with the endorsement that ‘addressee left’. On enquiry the complainants came to know that the 2nd opposite party was in police custody for cheating the investors who entrusted the building construction. The complainants sent letter to the City Police Commissioner on 14/03/2012 regarding this act. The opposite parties did not even commence the construction work of the apartment and violated the agreement after accepting the consideration which amounts to deficiency in service and unfair trade practice on the part of the opposite parties causing loss and damages to the complainants. Hence filed this complaint. The complainants sought for the refund of the amount of Rs.6,50,000/- @ 12% interest from June 2008 and the loss of interest calculated as Rs.3,12,000/- on the said amount, telephone and petrol charges amounting to Rs.4,60,000/-, inflation and rise in property cost due to the non-commencement of work claimed Rs.20,00,000/- and for mental agony Rs.5,00,000/- from the opposite parties. The complainants also prayed to get completed the construction of the apartment and to deliver possession and to realize cost of the proceedings.
3. The notices sent on 09/07/2012 were returned to this Commission with the endorsement ‘addressee left’ and again notice was issued through paper publication on 24/01/2012. The opposite parties remained absent and were made exparte.
4. The complainants filed proof affidavit and documents in support of their case and exparte evidence was given by the 1st complainant on his behalf and on behalf of the 2nd complainant. The complainants produced the original Agreement entered into with the opposite parties as Exbt.A1, returned notice sent to the opposite party as Exbt.A2 and the copy of the letter sent to City Police Commissioner as Exbt.A3 were marked in support of their case. The counsel for the complainants also argued the case in detail.
5. The complainant was examined as PW1 and documents were marked as Exbts.A1 to A3. The points that came up for our consideration are:
(1) Whether there is deficiency in service/unfair trade practice
on the part of opposite parties?
(2) Whether the complainants are entitled to realize compensation?
If so, what is the quantum?
(3) Costs, if any.
6. The complainants are husband and wife and on
superannuation the complainants decided to purchase an Apartment from the opposite parties. It is on the promise and offer made by the opposite parties, an agreement was entered into between the parties on payment of consideration of Rs.6,50,000/- on 22/06/2008 and the complete delivery of possession of the flat was fixed as 24 months from the date of agreement. On enquiry, it is understood that the O.Ps have not even started the initial works until 2012 and the notice sent to the opposite parties returned with the endorsement ‘addressee left’ produced and marked as Exbt.A2. Later on the matter was informed to the City Police Commissioner by letter dated 14/03/2012 marked as Exbt.A3. It is clear from the evidence that the complainants and opposite parties entered into a contract and accepted consideration for the construction of the Apartment and even after several enquiries and issuance of notice, the opposite parties evaded the notice and the conditions in the agreement were not fulfilled till date committing unfair trade practice and deficiency in service towards the complainants.
7. On going through the documents we find that the complainants paid the initial amount of Rs.6,50,000/- on entering into the agreement. The opposite parties were not available after accepting the initial payment and the complainants came to know that the opposite parties were in police custody for the crime of cheating other investors. As there is clear violation of the terms of agreement there is deficiency in service and the complainants are entitled for realization of consideration paid to the opposite parties towards the consideration for the purchase of the apartment with interest. The opposite parties committed deficiency in service and are to be compensated. Hence the points 1 & 2 are found in favour of the complainant. And now coming to the part of cost and reliefs, the complainants had incurred expenses towards the paper publication, court fees and other expenses and it is to be realized from the opposite parties and issue No.3 is also found accordingly.
8. It is to be pointed out that nothing is on record to show that the complainants had incurred expenses towards telephone and petrol charges and the complainants produced only Exbt.A2 to show that a communication sent by speed post was returned to the addressee. In the absence of any voucher or bill the amount claimed under this head cannot be considered. Further under the head the non-commencement of work in time and also on account of inflation and raise in property cost an amount of Rs.20,00,000/- claimed is also not supported by any value assessment of nearby property or the said property. However, the complainant paid the initial amount to the opposite parties. Under the facts and circumstances of the case; we find that the complaint is to be allowed.
9. The cause of action arises within the jurisdiction of this Commission. Accordingly we are of the considered view that the complainants are entitled to reliefs claimed.
In the result, the complaint is allowed and opposite party 1 and 2 are directed to pay the complainants an amount of Rs.6,50,000/- with interest at the rate of 9% per annum from June 2008. The opposite parties are also directed to pay Rs.1,00,000/- as compensation for deficiency in service and unfair trade practice. The complainant is also entitled to recover Rs.7,500/- as cost of the proceedings. The order is to comply within 2 months from the date of the receipt of the copy of this order. The non-compliance of the order will entitle the complainants to realize interest @ 12% per annum from the date of this order till realization.
The office is directed to send a copy of this order to the parties.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
C.C. NO.24/2012
JUDGMENT DATED 25/05/2013
sa
