BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 9^th day of February 2016

Filed on : 16-03-2013

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No. 216/2013

Between

Mrs. Jameela K, : Complainant

D/o. Late Kallattra Abdul Khader, (By Adv. A Balagopalan

Res. At Flat No. 6E, Muhammed Sooraj P.J.,

Link Horizon, Marine Drive, C.K. Aravindaksha Menon

Ernakulam. Associates, D.H. Road,

Ernakulam, Kochi-16)

And

1. Puravankara Projects Ltd., : Opposite parties

Regn. No. 227, (party-in-person)

S.V. Road, Bandra West,

Mumbai, Pin-400 050,

rep. By its Chairman and

Managing Director,

Ravi Puravankara.

2. Director, Puravankara

Projects Ltd., 130/1,

Ulsoor road, Bangalore-560 042.

Rep. By its Director Nani R. Choksey,

Business, S/o. Rusi Choksey,

res. At 130/1, Ulsoor road,

Bangalore-560 042.

3. Director, Puravankara

Projects Ltd., G 261,

Panampally Avenue,

Kochi-682 036.

Rep. By its Director,

Ravi Ramu.

O R D E R

Cherian K. Kuriakose, President.

The case of the complainant

As per agreement dated 10-04-2008, the complainant had entrusted the construction of a three bed room apartment with built up area of 1434 square feet, and proportionate common area of 308 square feet, having number 806 on the 8^th floor of the apartment complex by name” Purva Eternity”, along with a covered car parking space .Simultaneously another agreement for the sale of the undivided share of property was also executed between the complainant and the opposite parties. During the year 2000 itself the complainant had paid an amount of Rs. 40,86,912/- to the opposite parties, strictly in accordance with the payment schedule and terms and conditions in the agreement. As per the agreement the apartment with all completed facilities ought to have been handed over to the complainant in January 2010. As per the agreement, an amount of Rs. 7,000/- per month was to be given to the complainant by the opposite parties, during the period of delay occurred in handing over of the apartment to the complainant. But the opposite parties failed to complete the construction within the stipulated time, as per the agreement. The final payment of Rs. 1,44,792/- was made by the complainant on 18-01-2010, on the assurance of the opposite parties that the construction of the apartment would be over by 31-01-2010. However, the opposite parties did not complete the work of the apartments, contrary to the agreement entered into between the parties concerned, and they also did not hand over the completed apartment within the time schedule agreed between the parties. The complainant had to spend a sizable amount towards the construction cost. She had made all arrangements to shift her residence to Kakkanad, and she had to suffer humiliation and mental agony due to the deficient service and violation of the clauses of the agreement between the parties concerned. The opposite parties are liable to pay the complainant an amount of Rs.17,05,643/- towards the rent receivable on the completed apartment from the date agreed for the handing over of possession till the date of filing the complaint. The complainant had issued a lawyer notice to the opposite parties on 08-06-2012 calling upon them to expedite the construction work and to hand over the building to her at the earliest, and to pay compensation of Rs 5 Lakhs for the delay in delivery of the apartment after the construction. In the complaint filed by the complainant on 14-03-2013, it is prayed that the opposite parties are to be directed to hand over the possession of the apartment concerned along with a compensation for Rs. 18,05,643/- and to pay interest on the principal amount of Rs. 41,86,912/- from 28-02-2013 till handing over of the apartment. Rent @ Rs. 7,000/-per month from 28-02-2013 till date of handing over of the apartment, to be realised from the opposite parties, and for a direction to pay the cost of the proceedings are also prayed for.

2. Notices were issued to the opposite parties. The opposite party appeared pursuant to the notice and resisted the complaint by filing a version containing averments, in brief, as follows.

The complaint is not maintainable. She is a defaulter, and is precluded from any remedies through this forum. The total cost of the apartment was Rs. 41, 36,920/-. The complainant had to pay Rs. 2, 66,124/- towards K.VAT. But she paid only Rs.21, 690/-. Likewise the sale tax paid was only Rs. 3,042 as against Rs. 82,358/- due. Payment of service tax was also in default. The complainant was irregular in making the payments of instalments. The complaint is barred by limitation. There was a little delay in the completion of the apartments, but it was on account of various reasons beyond the control of the opposite parties, and therefore deficiency in service cannot be attributed to the opposite party on that ground. There is violation of the terms of agreement on the part of the complainant. Complaint is therefore sought to be dismissed.

3. The complainant examined her power of attorney as PW1 and Exhibits A1 to A13 were marked through him. Later, Ext A14 to A17 were also marked subject to proof. Thereafter IA 461/2014 was filed by counsel for the opposite party contenting that the marking of the additional documents after cross examination of PW1 has caused prejudice to him and that he need to cross examine PW1 further, and for that purpose, the witness is to be recalled. Allowing that petition, PW1 was recalled. After the closure of complainant’s evidence, the Opposite party filed proof affidavit on 25-03-2015 and Ext. B1 and B2 were marked and was ready to be cross-examined as DW1. It was pointed out that the complaint is not maintainable before this Forum, for want of pecuniary jurisdiction. The complainant had thereafter on 06-09-2015 filed IA 475/2015 with a prayer to allow her to delete the prayer in the complaint which relates to the handing over of the apartment, on the ground that the complainant had already taken possession of the apartment on 19-09-2015 on payment of statutory charges to the tune of Rs. 7,89,602/-. The complainant contented that having taken possession of the apartment this forum need not pass any order on the 1^st prayer now and may confine the decision only on the remaining reliefs sought for, and further that after the deletion of the prayer to hand over the possession, this forum will have jurisdiction to continue with the case for enquiry.

4. The above petition for deletion of prayer No.1 was objected to by the respondents. It was contented that the complaint as framed lacks pecuniary jurisdiction and the prayer for deletion of the main relief is to get over the case of the opposite parties that this forum has no pecuniary jurisdiction to enquire into this case. It was further contented that the complainant by filing such a petition has made herself disentitled to get any relief from this forum as she had suppressed material facts and misrepresented the forum and at any rate, the complaint is liable to be returned to the complainant for presentation before proper forum having pecuniary jurisdiction, if not dismissed.

5. The following issues are therefore formulated for decision

1. Whether this forum lacks pecuniary jurisdiction to enquire into this case?

2. Whether the prayer, for deletion of 1st relief, sought for the delivery of possession of the apartment, pendente lite , is allowable?

3. Whether the other reliefs prayed for are allowable?

4. Reliefs and cost.

6. Issue A.

Sub section (1) of Sec 11 of the Consumer protection Act which deals with the pecuniary jurisdiction of the District Forum says that subject to the other provisions of the said Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or devices and the compensation if any claimed does not exceed rupees 20lakhs.

7. In paragraph 4 of the complaint the complainant had admitted that the complainant had paid Rs.41, 86,912/- to the opposite parties in the year 2010 itself. The 1^st relief prayed for is to pass an order to hand over the apartment No 806 on the 8^th floor in the EF Block/wing having a built up area of 1434 square feet and proportionate common area of 308 square feet together with covered car parking space on PURVA ETERNITY to the complainant as early as possible. Therefore it is clear that the service required by the complainant is the delivery of the apartment having a value of Rs. 41,86,912/-. The said amount is more than double the amount of the pecuniary jurisdiction of this Forum. Consequently, it is obvious that with the relief sought for as no.1, the complaint as framed is not maintainable before this Forum. Any order passed by an authority, without the required pecuniary jurisdiction is void. Therefore we find that we did not have the required pecuniary jurisdiction to entertain the complaint as framed. Issue is found against the complainant.

8. Issue B and C.

The complainant had filed IA 475/2015 to delete the first relief sought for, on the ground that the complainant had already taken possession of the apartment during the pendency of the complaint, after the examination of PW1 and before the examination of witness for opposite party. The complainant had no case that the taking possession of the apartment was done after getting any permission from this forum before which the matter of taking possession was under judicial consideration. The complainant had therefore committed breach of judicial discipline, propriety and manners. The opposite party in their objection had contended that the apartment was ready long back and the complainant had deliberately backing out from taking possession to claim unmerited money from the opposite parties by misrepresenting facts before this Forum. When the complainant had sought the assistance of this Forum to get the reliefs sought for in the complaint, it would cast a demand on the complainant to inform his/her decision to take possession of the apartment while the matter was pending before the Judicial Forum. In the absence of any such move on the part of the complainant, we find that such possession allegedly taken by the complainant, lis pendense, has no sanction of law, and that fact alone would disentitle the complainant from seeking other reliefs, which are intertwined with the issue of handing over of possession. Since the complainant had made a compromise in the main issue to be resolved in this case voluntarily, without the junction of this Forum, the surviving issues to be resolved by this Forum have no independent existence. Having settled the main issue by the complainant the subsidiary issues are deemed to have been settled. In the above facts, circumstances and findings as above, we find the issues against the complainant.

9. Issue No D.

In view of the findings on the previous issues, as above, we find that this is not a case where the complaint is to be returned for want of jurisdiction, but is a case which deserves dismissal not only for want of bonafides, propriety, and spotlessness in the approach of the complainant but also for having settled the main issue by himself/herself, out of the Forum, warranting no further interference by any judicial forum. The complaint hence stands dismissed, without any cost.

Pronounced in the open Forum on this the 9^th day of February 2016

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant’s Exhibits:

Exbt. A1 : Special power of attorney

A2 : Construction agreement

dt. 10-04-2008

A3 : Construction agreement

dt. 10-04-2008

A4 : Copy of receipt

dt. 31-03-2008

A5 : Copy of G-mail

A6 : Copy of g-mail

dt. 22-06-2011

A7 : Copy of lawyer notice

dt. 08-06-2012

A8 : Copies of postal receipts

A9 : A.D. Card

A10 : A.D. Card

A11 : Undelivered letter

A12 : Receipt dt. 25-08-2008

A13 series : 4 receipts

A14 : Copy of letter dt. 24-03-2014

A15 : Copy of letter dt. 27-03-2014

A16 : Copy of letter dt. 17-03-2014

A17 : Copy of letter

dt. 24003-2014

Opposite party’s Exhibits: :

B1 : Authorization dt. 25-02-2015

B2 : Copy of letter dt. 16-04-2014

Deposition

PW1 : Imthiyaz Ahammed

Copy of order despatched on:

By Post: By Hand: